WCDefenseCA

When your humble blogger was wrapping up high school and getting ready to start an exciting life of cow-tipping and avoiding bike-seat-theft at UC Davis, something magical happened in Southern California.  The California Coastal Records Project took photographs of Barbara Streisand’s coastal home along with photos of the much of the rest of the California Coast.

In 2003, Ms. Streisand sued seeking to have the photos of her home removed from the website, claiming the right to privacy.  Internet wisdom holds that until this lawsuit, the photos had only been downloaded 6 times, but after the lawsuit, several hundreds of thousands of people went to see the photos, and likely more since then.  In trying to sue to protect the claimed privacy of her home, she drew enormous attention to it instead.  The “Streisand effect” is just one of those examples of unintended consequences.

So let’s talk about AB257, which empowers the State of California to raise minimum wage for fast food workers up to $22 per hour, along with the growing (and growingly crippling) cost of workers’ compensation in California.  Much like California’s gas tax increases the cost of each gallon drastically at the pump, California inflates the cost of an hour of labor in the fast food industry as well: minimum wage, HR laws, and, of course, the cost of workers’ compensation per $100 in wages.

Well, Daily Mail recently had an article about yet another automation system intended to minimize a fast-food restaurant’s reliance on human labor: “Flippy, Sippy and Chippy”  The idea is, of course, to automate many of the tasks and, ultimately, replace much of the human work force while avoiding paying for things like breaks, no-shows, injuries, overtime, etc.

Several major chains are already paying Miso Robotics the installation price and monthly fees ($3,000 per month!), reportedly including Chipotle, White Castle, and Panera Bread, among others.

So, naturally, California has made the cost of labor in the fast food industry so high, that it is economically efficient to replace a portion of the labor cost with these robots.  Of course, this isn’t an option for everyone: given the start-up capital needed for installation and the monthly rentals involved, smaller franchisees are probably not going to be able to use this technology until the price falls and the maintenance is reduced.  But that’s not a concern for Sacramento, of course.

So, the net result will be as it has always been – smaller businesses and their employees will be out of the job and their competitors with better staying power will lay off a portion of the workforce to replace them with machines.  Meanwhile, your humble blogger will start working on good-faith non-discriminatory personnel action defense trial briefs for the inevitable psyche claims of “stress from being replaced by a robot” applications.

Perhaps we can start referring to this as the “Sacramento effect?”

Have a great weekend, dear readers!

Happy Monday dear readers!

Your humble blogger hopes your weekend was restful and rejuvenating, and that you’ve come back to California workers’ compensation with the vigor and will necessary to continue denying benefits.  In the meantime, I’d like to highlight a natural and timeless phenomenon occurring before our very eyes.  The California Public Utilities Commission is allowing Cruise to proceed with driverless taxis and offering passengers rides for a fee in San Francisco.  Although this is a limited test as to time and parts of San Francisco to be serviced, if this proceeds well we could see more and more of the same state-wide, if not nation-wide.

Of course, Sacramento is used to getting brownie points by championing the rights of UBER and Lyft drivers by putting the squeeze on their “employers” while at the same time pricing that labor out of the market and opening the door for more automation.  How much of California’s economy is reliant on drivers?  How much of that economy can we see replaced by self-driving cars?

If self-driving cars are successful, what can we expect to see as an impact in California’s workers’ comp system?  Fewer injuries, both specific and CTs, claimed by drivers, because, of course, there would be fewer workers in that field.

What can Californians in general expect if human drivers are successfully replaced with self-driving cars?  The same thing we see wherever automation is allowed to flourish: more consistent services at lower cost. 

Your humble blogger is cheering the trend towards automation on with both hands.  Now, who amongst my beloved readers will be brave enough to ride a driver-less taxi in San Francisco and report on the experience?

Straight on to Wednesday, dear readers!

Happy Monday, dear readers!

Your humble blogger hopes you are having a great time as we approach the start of May.  The year is zipping right by us as we cruise into the future.  Speaking of, it’s no secret that your humble blogger is a big fan of gadgets and technology.  When that interest intersects with the self-destructive obsession with workers compensation, his beloved readers are typically burdened with a blog post… so here we go!

In September of 2020, Governor Newsome signed into law SB 1159 which created various presumptions for COVID exposures.  Some are for the initial outbreak, and some are for certain professions such as law enforcement and healthcare workers among others.  But there’s another section having to do with outbreaks, defined as at least 4 employees (or 4% of the employees at a specific workplace, whichever is greater) testing positive within a 14 day period.

How is the employer supposed to rebut the presumption of industrial exposure in an outbreak case?  Well, we have the tools at our disposal that existed before the outbreak: discovery such as depositions, social media investigation, and investigator interviews.  But, despite the best efforts of Sacramento, the market tends to respond when there is a need.

A company called Estimote has possibly built a better mousetrap by creating collar tags that are worn by employees in the workplace.  The collar tags are supposed to vibrate when two tags are within 6 feet of each other, and also provide contact tracing.  So, if Jill at the office reports a positive Covid test, Jack at HR can check her history for the last 14 days and show which other devices have been within 6 feet of Jill.

Is this a certainty?  Of course not.  Employees can still be exposed to Covid by customers or visiting vendors who probably won’t be wearing these devices.  But the presumption is rebuttable and perhaps this evidence will provide some basis to offer a denial.

While it’s possible that an employee is infected because of contact at work, neither the workers’ compensation system nor life in general operates on possibility – the standard is always probability.   If an employer can effectively demonstrate that an applicant did not have contact within 6 feet of any other Covid positive employees in the past 14 weeks, doesn’t that drastically reduce the likelihood that the exposure occurred at work?

Ultimately, employers will have to weigh the cost of obtaining, setting up, monitoring, and, most importantly, enforcing, such a system against the likelihood of reduced workers’ compensation costs. 

Straight on to Wednesday, dear readers!

Happy Monday, dear readers!  Your humble blogger trusts that the weekend was peaceful and meaningful for his beloved readers.

If you are observing Passover, may your bread-free life pass painfully until the end of the festival.  If you are observing Easter, I hope you find all the eggs you hid and that you will not judge your humble blogger for raiding the clearance aisle for all the Easter candy the stores failed to off-load.  I’m just buying it for … um… the kids! Yeah, that’s the ticket: those Cadbury eggs are just for the kids and totally not for your humble blogger to eat in reckless abandon for his waistline.

Anywho, aside from observing holidays, let’s talk COVID and technology.  More specifically, the FDA has approved a breathalyzer test for COVID19, which reportedly produces results in 3 minutes with a 91% accuracy rate.

As many practitioners did, your humble blogger looked ahead and anticipated the issues that will go to trial over COVID19 and the various vaccine rules.  Is an employee engaged in “serious and willful” misconduct by refusing to vaccinate?  If an employer’s vaccine mandate is the only reason an injured worker is not being returned to modified duty, is the injured worker still entitled to TTD?  Is an employer’s different treatment of unvaccinated employees sufficient to give rise to psyche and stress claims?

Well, perhaps this can be the answer.  Instead of requiring proof of current vaccination status, perhaps an at-work screening for COVID19 positivity is a better solution.  After all, it is now pretty solidly established that the vaccinated can both catch and transmit the disease, as we’ve seen in some recent examples, so wouldn’t it be sounder policy to breath-test all employees as they come to work to ensure no one is bringing COVID19 to work?

This is a device and method worth watching, as it may offer a relatively pain-free solution to the animated (and sometimes violent) debate we’ve seen played out nationally and internationally about the balance of rights and responsibilities in public. 

What do you think, dear readers?

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

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

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

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

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

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

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

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

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

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

Straight on till Friday, dear readers!