WCDefenseCA

Happy Monday Dear Readers!

Pop quiz for you – does a body part have to be plead or claimed by an applicant in order for him to receive medical treatment for that claim?

We touched on this a bit in an earlier blog post where a lien claimant psychologist could not recover when the application never alleged psyche as part of the claim.  Well, the same result was reached in the panel decision of Jiminez v. Yang Wu International Inc.  Lien claimant sought recovery for dental medical treatment, but applicant never alleged dental/jaw/tooth injury, although he did claim injury in the form of various orthopedic and respiratory conditions.

A C&R was reached and approved by a WCJ but there was no dental injury plead in the original application nor in the C&R.  The WCJ found no liability on the part of defendant for the dental medical services, and the lien claimant appealed.  In affirming the WCJ’s ruling, the WCAB noted that the underlying medical report did not address why the dental medical treatment “was reasonably required to cure or relieve applicant from the effects of his industrial injury.” 

Central to this reasoning was that the lien claimant bore the burden of proof, and merely showing that medical treatment was provided is insufficient. 

The WCAB rejected the theory advanced by the lien claimant that the (alleged) fact that “defendant had notice of the claim of dental injury” was in any way relevant to the analysis. 

The reasoning is sound, of course, but imagine if a contrary finding was reached: the mere existence of an industrial injury would render the employer liable as a general health insurer for anything and everything that ailed the injured worker.  Would an admitted back injury give rise to liability for orthosis for a pre-existing hand injury? 

Aside from the good result for the defense, this case is a valuable reminder to us all that pleadings matter and should be examined in detail, both at the inception of the case and in contemplating which body parts to include in the C&R.

Happy Monday dear readers!

Here we are again, slugging through our beloved swamp of California’s workers’ compensation system.  Your humble blogger brings you a panel decision today which touches on everyone’s favorite subject: panel disputes!  Indeed, when the California legislature deemed fit to strip parties of their rights to retain their own experts as part of the SB-899 reforms, the car-salesman pitch was a savings in costs.  I wonder how much money the system is saved having to litigate every panel request and specialty.

Anywho, let’s take a look at the panel decision in the case of Ceballos v. Access to Independence of San Diego.  The issue here was, of course, yet another panel dispute.  Applicant was evaluated by a psychology PQME in 2019.  When defendant tried to set a re-evaluation in December of 2020, the QME advised she was only willing to engage in a remote, telemedicine evaluation. 

Defendant requested a replacement panel on two grounds – the first that because the QME was unwilling to do an in-person evaluation, and the second because no appointment was available within 90 days of the request as per rule 31.5(a)(2). 

Applicant’s counsel objected to the replacement panel request and filed a DOR, and the matter eventually proceeded to trial.  The WCJ held that defendant was not entitled to a replacement panel and the WCAB concurred.  Relying on Rule 46.2 the WCAB noted that the rule provided that a party cannot be unreasonably denied, and that the remedy for an alleged unreasonable denial was to file a DOR and bring this to the WCAB for a hearing.  The WCAB noted that a replacement panel was not the appropriate remedy, but rather a hearing by the WCAB.

The WCAB also held that the time limits for an evaluation in rule 31.5 apply to an initial evaluation, and not subsequent re-evaluations.

So, a few thoughts on this.  First off, your humble blogger agrees with the WCAB opinion in Ceballos of course that agreement to telemedicine cannot be unreasonable denied.  But, with that in mind, what is a reasonable basis upon which to object to telemedicine?  If the QME can observe the applicant via the computer screen and hear the applicant via the audio functions, what would be the hesitation.  Now, your humble blogger would be among the first to object to a telemedicine QME evaluation for an orthopedic issue – a doctor cannot effectively take measurements of range of motion or check for Waddell’s signs of magnification over a ZOOM conference.  But with a psyche evaluation, telemedicine seems appropriate. 

What’s more, telemedicine presents a feasible opportunity for the defense community to test its rights to send a nurse case manager to observe the evaluation, and see if interpretation of the law can be forced to allow recording of a psyche exam by the defense, as discussed here.

But, on to the other point by the WCAB.  Is the limit of 60-90 days to set an evaluation really only for the initial examination?  Can the parties really be held hostage by a QME who won’t re-evaluate applicant for a year or two?  The WCAB’s decision in Ceballos focused on the language in 31.5(a)(2), specifically “a QME on the panel issued cannot schedule an examination for the employee within sixty (60) days of the initial request for an appointment” (emphasis added) and cited the panel decision of Cienfuegos v. Fountain Valley School District, a 2011 panel opinion.  This same reasoning is applied in the 2019 panel decision of Gustafson v. City of Mountain View.

So, what is a party to do when the QME cannot or will not set a re-evaluation within a reasonable time?  Well, section 31.5(a)(6) does provide a catch-all: “the evaluator who previously reported in the case is no longer available.”  Granted, it’s bit of a stretch, but if the WCAB interprets 31.5(a)(2) to apply only to initial evaluations, then perhaps a QME that refuses to provide a reasonable re-evaluation date is “unavailable” under section 31.5(a)(6).

What do you think, dear readers?  Does this interpretation violate the California constitution’s requirement to “accomplish substantial justice in all cases expeditiously”? 

Don’t be shy, dear readers… tell me what you really think!

Welp, it’s Wednesday, dear readers, and your humble blogger is here for you with yet another blog post.

Fortunately, this post is good news – another successful decision reached thanks to the efforts of the attorneys at State Compensation Insurance Fund!

Before we get into the meat of the issue, your humble blogger would like to voice an additional objection to this whole “adding instead of combining” disabilities trend.   When your humble blogger was just knee high to a grass hoper, I was full of opportunity and promise, just like everyone else.  Potential was a plenty.  It seems truly unfair now that the WCAB seems to be inclined to impose upon us the very thing we hoped to avoid by going to law school: math!

Accordingly, your humbleblogger hopes we can return to the magic of the combined values chart rather than the pain of the adding of impairments.  Nevertheless, on to the panel opinion!

The panel decision is Martinez v. Sousa Tire Sevice, insured by SCIF.  Applicant’s impairments on an accepted case were rated as 77% PD for orthopedic injuries, 62% for CRPS, and another 26% PD for psychiatric disability.  While the orthopedic and CRPS were combined to yield 91% PD, the psychiatric impairment was added to reach 100%.  Had the 26% PD for the psyche been combined with the 91% for the orthopedic and CRPS, of course, the result would have been 98%.  Now, you might be thinking, dear reader, that there isn’t much difference between 98% and 100%, but your humble blogger could not possibly disagree with you more.  While 100% includes a life pension at the TD rate, 98% is significantly less, or at least it can be depending on the circumstances.

Anywho, the psychiatric treating physician wrote a report expressing support for adding the psychiatric impairment to the orthopedic impairments, “given tat the psychiatric impairment does not overlap with his orthopedic impairment.”  The panel rejected this opinion.  Distinguishing the Kite decision, the panel noted that in Kite, the two body parts being “added” rather than combined were both within the reporting physician’s expertise, and the two impairments caused a “synergistic” effect, justifying the addition.  The panel continued: “[i]n contrast, here one specialist is suggesting that we add impairments found by her in her own specialty to impairments in a completely different body system found by a different specialist.”  The case was sent down to the trial level for a new finding of PD and attorney fees.

Does this reasoning sound familiar? It will to my most learned and diligent readers.  This was the same logic used to rejecting adding impairments in the panel decision of Bradley v. State of California. 

Certainly good news for the employer in this case, but on a broader scale this should encourage us to challenge those Kite ratings and not shy away from litigating the issues. 

Until next time…

Happy Tuesday, dear readers!  Howdy Y’all!

Your humble blogger is back from his trip to Texas.  So, a few brief updates for you: the NRRDA conference was fantastic.  I highly recommend you attend in the years to come if you can make it.  Despite my best efforts to catch an armadillo, the clever little buggers would make me chase them up hill, then turn into a ball and roll back down until I was exhausted.  The bowling tournament will just have to wait.

Despite not catching an armadillo, I did manage to find something far more precious – some new friends, which is nothing to sneeze at.  After all, one of life’s greatest examples of tragic irony is that pirates spend their lives searching for treasure, never realizing that the real treasure is the friendships they form along the way.

Anywho, since we’re back in reality, let’s talk about a panel decision, shall we?  I bring to your attention, dear readers, the case of Munoz v. Cascade Drilling, recently issued by the WCAB.  This is on everyone’s favorite subject – panel disputes!  Applicant was examined by a QME in the orthopedic specialty for his claims of injury to the right wrist and right upper extremity.  The report was served on the parties on March 9, 2021.

But, just as the good doctor was dropping his report into the mail, applicant’s counsel was dropping an objection into his own mailbox, alleging that the report was not timely and demanding a replacement panel in the specialty in pain medicine.

The parties proceeded to trial on the issue and the WCJ ruled that applicant is entitled to a new panel, AND is entitled to change the panel specialty. 

Since your humble blogger has an overactive imagination, I like to think that at 6:00 a.m. on the 30^th day since the exam, applicant’s counsel’s alarm goes off, but he’s already awake. He rips the blanket off himself and is wearing already wearing a suit, clutching the objection letter in his hand.  “I’ve waiting 30 days for this moment” he thinks to himself, “it may as well have been 30 lifetimes.”  As he drops his objection letter into the mail, he roars “evaluate THIS!”

So, what happens, dear readers?  The QME is serving the report on the same day the applicant is serving his objection.  On the one hand, there is no way applicant’s counsel has seen the report at the time he sends his objection – so any concerns of objecting based on the contents of the report don’t apply.  On the other hand, Labor Code section 139.2(j)(1)(A) provides for 30 days after an exam to submit the initial report, and rule 38 requires that the objection me made prior to the date the evaluator served the report.

The WCAB took up the issue and found that the plain meaning of rule 38 is that an objection has to be made PRIOR to service of the report. So, if both the objection and the report are served on the same day, presumably the objection is late and the report stays in.

It seems to be taken as a given, however, and not commented upon by the WCAB, that a replacement panel due to a late report allows the objecting party to change the panel specialty.  In your humble blogger’s opinion, the proper approach is to issue a replacement panel in the same specialty.  What do you think dear readers?

And here’s another hypothetical question for you from your humble blogger.  The report in this case was served on March 9, 2021.  Since then, the WCAB has adopted rules requiring the parties to accept service by e-mail.  What happens if the report is served by e-mail on day 31 at 8:00 a.m., but one of the parties had scheduled an e-mail objection at 12:01 a.m. that morning objecting to the late report?  At that point, does the objection get “made” before service of the report, consistent with rule 38?  After all, the online panel request system is sensitive to the millisecond – the first electronic panel request after 5:00 p.m. on 16^th day wins.

Just something to think about in our brave new world, dear readers.  Till Wednesday…

Happy Wednesday, dear readers!  Last week, your humble blogger wrote about the Bradley panel decision, in which the WCAB held that a Kite addition was inappropriate as between two different systems of impairment (psyche and orthopedic) because neither reporting physician was competent to comment on whether the two should be added or combined. I also received a bizarre e-mail from the publishers of The Kite Runner (great book by the way!) telling me to stay away from their author and his kites.

One of my beloved readers sent me a copy of the WCAB’s decision in Kidd v. Alameda Contra Costa Transit District, another relatively recent panel decision from September of last year, which appears to go the other way from Bradley (no, dear readers, I’m not Kidding you…)

Applicant Kidd had claimed injury to her head, neck, back, shoulders, and psyche as a result of an MVA while working as a bus driver.  The psyche AME assigned WPI based on a GAF score of 55, and found that 70% of the psychiatric disability was caused by the MVA, 20% by the pain and physical problems resulting from the MVA, and 10% by non-industrial factors.

The orthopedic AME found 26% WPI for the cervical spine, 10% for the right shoulder, and gave a 3% pain add-on, also finding that 100% of the orthopedic permanent disability was caused by the MVA.

When asked, he psyche AME opined that adding the psyche WPI to the orthopedic WPI (as opposed to combining the two) was the best approximation of the disability because the orthopedic injuries diminished motivation to engage in activities, while the psychiatric disability lowered effectiveness of medical intervention. 

At trial, the WCJ added the permanent disability rather than combine it, resulting in an award of 92% PD.  Defendant appealed arguing that the appropriate PD is a combination of the 54% PD from the orthopedic claim and the 38% PD from the psychiatric conditions (this would have resulted in a final PD of 71%.

The WCAB denied reconsideration, adopting the reasoning of the psyche AME and the trial judge.

Your humble blogger of course was not participating in this case at all and is just being a Wednesday-morning quarterback, a back seat driver, an armchair general, etc.  So, of course, I’m going to handle this issue with Kidd gloves.  But looking at the breakdown and the reasoning from the psyche AME, we have 20% causation of the psychiatric permanent disability resulting directly from the effect of the orthopedic injuries, rather than the psychiatric injury directly from the MVA.  We also have the justification for adding permanent disability rather than combining it based on the orthopedic injuries causing withdrawal and less enjoyment in life.

In other words… aren’t all of these psychiatric issues compensable consequence of the orthopedic injury?  After all, we have the “pure” psychiatric injury resulting from the MVA, which is the cause of 70% of the permanent psychiatric disability.  But when you get to justifying the adding of impairment and 20% of the cause of the permanent psychiatric disability… aren’t all of these compensable consequences?

Well, then let’s look at Labor Code section 4660.1(c)(2) which specifically prohibits us from increasing permanent disability for psychiatric compensable consequences absent certain circumstances.  From your humble blogger’s review of the Kidd decision, it does not appear that the WCAB panel, nor the trial Judge, addressed 4660.1 as an argument so it’s not clear if it was raised.  But it would be interesting to try this argument should similar facts come up.

Furthermore, and, again, looking at the Bradley decision from last week – is the psychiatric AME competent to comment on the “synergistic” effect, or lack there of, between orthopedic and psychiatric disability?  Bridges only work if they connect both sides, so while the psychiatric AME might be in a good position to conclude that the orthopedic injuries increase the psychiatric burden, what is the evidence that the psychiatric impairment is increasing the burden on the orthopedic injury?

Recall please, the original Kite decision had to do with a panel QME concluding that the impairments assigned to each hip should be added instead of combined.  The same PQME had examined applicant for both hips and was competent to comment on hip impairment.  Kidd is taking it a step further.   In other words, to the Kite is the mommy goat, then Kidd is the… well… the Kid. 

Seeing how your humble blogger has exhausted his supply of both Kidd puns and comments, here’s hoping to see you on Friday again, dear readers!

Happy Wednesday, dear readers!

Your humble blogger is big enough to admit that he’s an odd duck.  For example, as his classmates took nothing but delight in flying kites, your humble blogger was not one of those boys that enjoyed such things.  In fact, nothing made me happier, while walking on San Francisco’s Ocean Beach listening to “Smooth Jazz KKSF” to see a kite go down.  “That’s what you get” I would think to myself.  I already admitted to being an odd duck, what more do you want, dear readers?

Anywho, as I grew up, my listening tastes changed, but the delight in seeing a kite crash and break apart is still there.  So, with that little bit of glee, I offer you the panel decision of Bradley v. State of California.  Applicant, a corrections officer, sought reconsideration of a WCJ’s ruling that he sustained 90% PD (85% orthopedic, 23% skin disability, and 17% hearing disability) and instead argued that he was permanently totally disabled as the WCJ should have added his disability rather than combined it.

Applicant argued that the various conditions do not overlap, and thus should not be combined but added.  The WCAB rejected this claim, however.  Citing the WCAB’s decision in Kite, this panel articulated the rule that “adding, rather than combining, two different impairments better reflected a worker’s impairment when substantial medical evidence supported the notion that the two impairments in effect combined and the resultant impairment was more than the sum of the two impairments.” 

Of particular importance to the Bradley panel was the fact that in Kite, the evaluator wanted to add body parts/conditions that were all within that evaluator’s area of expertise.

By contrast, Mr. Bradley’s evaluators were all in different specialties (orthopedics, skin disability, and hearing) and so any opinion that the conditions should be added rather than combined would be outside of any of the physicians area of expertise.

Of interest, based on the opinions of the skin QME, the WCAB granted reconsideration to allow applicant to plead a separate CT for skin cancer because the QME opined the causation was different for skin cancer as opposed to the orthopedic and hearing loss claims.

So, what can we take away from this? 

The holding in Bradley reaffirms that in order to do a Kite rating, the two conditions to be added rather than combined most both be in the expertise of a single medical-legal evaluator. 

Further, to the extent that practitioners can parse out causation, defendants may be able to force a separate cumulative trauma.  So, if a CT is claimed for three body parts or systems over the same period of time (as an example, orthopedic knee injury, lung cancer, and skin irritation from cleaning chemicals), if the causation is different on the three systems, perhaps applicant could find himself with three awards of 20% each rather than a combined award of 49% PD.

All in all, the Bradley decision is not a bad one to keep within reach for reference, no?

Now, if you’ll excuse me, I’m going to make some children cry but cutting the lines to their kites (in honor of Bradley).  Till Friday, dear readers!

Happy Monday, dear readers!

I trust all is well and you are refreshed and eager to start a new week.  Well, at least half a week, since Thanksgiving approaches.  On Thursday, we can all be forward-thinking and noble, with gratitude in our hearts for all that we are lucky enough to have, and the company of our family and friends around a table laden with delicious food. 

Certainly, no one would ever think of spoiling such an atmosphere by bringing up recent events that might spoil the harmony and bring on discord, right?  We should all practice saying the following line so that it’s ready by the time we sit down for Thanksgiving dinner: “I know we can’t agree on this, but can we agree that it’s good to be together for a meal after such a rough year?”  If that’s not likely to work, then perhaps a change of venue for dinner is appropriate.

Speaking of changing venue (see what I did there?), have you seen the very recent panel decision in the case of Shuey v. City of Redlands Police Department?  Well, an application was filed in February of this year designating Marina del Rey as the venue.  Defendant mailed an objection about three weeks later, but the EAMS system does not show a change of venue until August!

Defendant presented evidence from the U.S. Post Office that the objection to venue under Labor Code section 5501.5 was delivered within 30 days of service of the notice of the application.  The WCJ denied the petition and recommended that removal be denied on the basis that the petition was untimely.

The WCAB granted removal and sent the matter back down for the trial level to consider the evidence of the USPS delivery proof.  However, the matter would be heard further at the same venue which defendant was seeking to move out of… at least for now.  In any case, I’m sure both the parties and the WCJ will consult 8 CCR 10615(b) which reflects that a “document is deemed filed when received…”.

Your humble blogger was certainly around when EAMS was just coming online, and remembers well the grumbling and complaints about the system.  Well, it’s been over a decade since then and EAMS is still here and I think we’ve all gotten used to it.  More than that, and as a credit to Kevin Star who oversaw its implementation, EAMS allows us to not only e-file documents, but receive a time-stamp of receipt by the WCAB. 

If you are not currently an e-file, your humble blogger cannot urge you enough to become one, if for no other reason than to avoid such a situation. 

In the meantime, this case serves as a friendly reminder for all of us – if the venue selected is not (1) the county where the applicant resides on the date of filing, or (2) the county where the alleged injury occurred, defendant has 30 days from receipt “of the information request form” to object to venue, and have venue transferred to option (1) or (2).

Practicing in Northern California, I can report that we regularly receive applications for injuries sustained in Northern California by employees living in Northern California, but with venue selected for Southern California.  This puts defendants at a significant and, dare I say it… unfair disadvantage and it is probably a good practice to have an objection letter ready to knock these out as they come in.

Straight on till Wednesday, dear readers!

Happy Monday, dear readers!

My more regular readers will know that it is truly a rare thing when your humble blogger agrees with a result that disfavors the defense, but… well… here we are.

Before I had my life view permanently warped by the inner workings of the workers’ compensation system, as a perfectly normal, healthy, happy person I often wondered why employers would punish employees that sprang into action to prevent crime – why would you fire the hero that tackled the armed robber looting your restaurant?  Why would you suspend the sales clerk that tackled a fleeing shoplifter?

Well, workers’ compensation provides an excellent explanation of exactly why employers are incentivized to do that – it is far cheaper to replace stolen articles by raising prices on customers than it is to pay for the workers’ compensation benefits flowing from injuries sustained during heroics.  The punishments serve as a deterrent for future situations with other employees.

One of the very early blog posts on this most humble of blogs was on this very topic.  Well, a recent panel decision, Alex v. All Nation Security Services, Inc., provided the WCAB with an opportunity to reiterate and explain the policy that awards benefits to superheroes moonlighting as ordinary employees.

In Alex, a security guard confronted and chased after a disruptive person hurling profanity and harassment as customers and employees alike.  In the process, Mr. Alex was struck by the employee and sustained further injury after he left the employer’s premises in pursuit of said trouble-maker.  The employer argued that the claim was not compensable as Mr. Alex had received clear instruction and training that he was not to chase after or apprehend anyone – the stated job duties were far closer to “observe and report” than “serve and protect.”

By giving chase, defendant argued, the conduct exceeded the scope of employment, and by leaving the employer’s facility, the facts only strengthened the argument.  Well, neither the trial judge nor the WCAB agreed.  The situation arose when applicant was at his employer’s premises doing his job as a security guard – what followed was authorized activity… if only performed in an unauthorized manner.  The trial judge’s ruling that the injury was compensable was upheld by the WCAB.

Now, to the naysayers reading this blog, allow me to offer you a hypothetical.  If I hire a security guard to work the night shift at my 24-hour-person-crusher-factory, and I give specific and clear instructions on a weekly basis to my security guard NOT to get crushed by the person-crushers… am I safe from workers’ comp liability when the guard inevitable suffers the inevitable? 

Never mind why I have such a factory, but the point is still there – instructing the injured worker not to do things that will result in the injured worker getting hurt is insufficient.  In some cases there may be affirmative defenses or perhaps reduced benefits due to employee serious and willful misconduct, but this is, after all, a no fault system.

The Alex case lays out the authority and citations for this fairly well, chief among them the 1988 Court of Appeal case Westbrooks v. WCAB (employee misconduct, whether negligent, willful, or even criminal, does not necessarily preclude recovery … in the absence of an applicable statutory defense, such misconduct will bar recovery only when it constitutes a deviation from the scope of employment.”) and should drive the point home that employers seeking to mitigate their workers’ compensation exposure will benefit most from increased training, improving conditions, and pricing the inevitable workers’ compensation claim into the cost of services. 

The theory that the fault of an employee will bar the claim is much like the car your humble blogger’s parents owned in the Soviet Union (a non-starter).

You know, dear readers, when your humble blogger was just knee high to a grasshopper, there was a semi-popular franchise called “Dennis the Menace.”  This was originally a syndicated newspaper comic strip and went on to manifest itself in various tv shows and a few movies.  Basically, Dennis was a kid who kept making messes and trouble for his family and neighbor in overall harmless ways to much comic effect.

Watching the shows and movies as a kid, I never fully appreciated what a “menace” the name “Dennis” could be for everyone else.  It took practicing as a workers’ compensation defense attorney to fully understand.  Well, I do now, of course.

The very first reported decision by Lexis in this decade was that of Dennis v. State of California.  Therein, the WCAB held in an en banc decision that only “bona fide” offers of work barred liability for a SJDB Voucher for defendants.  In the Dennis case, the defendant, a prison, offered applicant (an former inmate) his job back, which he, of course, could not accept because he had since been released.  So, while the prison could accommodate the work restrictions, the release of the applicant from incarceration made the job unavailable.

The WCAB held that the “offer” of work in the Dennis case was invalid because applicant could not accept the position – absent a fresh conviction, California wasn’t going to allow Mr. Dennis into the prison.

Well, the results of that decision have been felt in case after case.  Most recently, in the panel decision of Urias v. PT Gaming (special thanks to the very talented R.C. for bringing this decision to your humble blogger’s attention), the WCAB ruled that applicant was entitled to a SJDB Voucher even though he had voluntarily resigned his employment.

In Urias, defendant argued that a SJDB Voucher is not due because applicant had voluntarily resigned – how could an employer offer a return to work when there was no longer an employment relationship?  In affirming the WCJ’s finding that a voucher was due, the WCAB ruled “we conclude that applicant’s resignation has no bearing on his entitlement to a voucher,” citing Dennis.

Effectively, applicant could force the provision of a voucher by resigning.  After using the voucher, he could seek re-employment once more, since AB-749 invalidates most resignation language that prevents seeking re-hire at the same employer.  And despite some very old case law prohibiting the use of 132a claims for refusing to rehire, perhaps the results would be a bit different if tried again today.

Well, what other benefits are available if there is no offer of regular, modified, or alternative work that complies with current work restrictions?  Typically, either temporary disability benefits or permanent disability advances.  Will the logic of Dennis and Urias apply to these as well?  Can an applicant weaponize his tactical resignation to force TD benefits?

Let’s take a hypothetical: applicant sustains injury and is temporarily disabled.  He resigns his employment while receiving TD.  His employer, relying on the resignation, hires another person to fill the vacant position.  Once the treating physician releases applicant to work (but he is not yet permanent and stationary), how does the employer avoid liability for temporary disability benefits?  The position is no longer available (even though the employer could accommodate the work restrictions), so there is no “bona fide” offer of regular, modified, or alternative work.

Hopefully the logic will not be held to so extend, but surely some enterprising applicant attorney will try it sooner or later.

Unfortunately, because the liability for a voucher is so low on an individual scale, and since either a new en banc decision or a Court of Appeal ruling would be necessary to limit or overrule Dennis, most employers and insurers will not have a business case for funding litigation on this issue.  That may very well change if and when this reasoning is used to justify temporary disability benefits.

In your humble blogger’s opinion, Dennis may have been the pebble dropped in the pond but we have yet to see how far all the ripples go.

What do you think, dear readers?   Is your humble blogger playing the role of Chicken Little once again?  Straight on till Friday!