Hear now, dear readers, of the case of Daniel Prather v. City and County of San Francisco.  Mr. Prather sustained an injury to his back over a period of time ending in 2002, at which point he was 53 years old.  (On a completely unrelated note, what is the retirement age, if any, for employees of San Francisco?  Applicant apparently now splits his time between his home in Illinois and his home in San Francisco).

The parties retained their own Qualified Medical Evaluators, and applicant’s QME found applicant to require a wheelchair to ambulate unless the distance was less than 100 yards, in which case applicant could move around using crutches.

But then defendant raised the issue of apportionment – applicant had five back surgeries since his claimed date of injury, and had been diagnosed with pre-existing lumbar scoliosis, and at least some of his permanent disability was due to “the progression of this condition over a period of many years.”

But how much apportionment is appropriate under Labor Code section 4663?  Defendant’s QME apportioned 1/3 of applicant’s impairment to the non-industrial scoliosis.  Applicant’s QME, however, was silent on the matter and did not address apportionment in his report.  Why didn’t the parties just request a supplemental report?  Because applicant’s QME had retired and was no longer available.

Your humble blogger has a question which neither the WCJ’s report nor the panel opinion answers – Labor Code section 4663, subsection (c) states in pertinent part: “[i]n order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination.”

If applicant’s QME failed to include an apportionment determination, then how could the findings of the QME with respect to permanent disability be considered complete?

This lawyer understands that this is a 2002 date of injury claim, which precedes the 2004 implementation of Labor Code section 4663.  However, the report on which the WCJ relied was dated December 3, 2008, and if some of 4663 applies to pre-2004 claims, why not all of it?

As applicant’s QME was retired, the WCJ relied on the defense QME’s apportionment opinion, apportioning 1/3 of applicant’s disability to the non-industrial scoliosis.  Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration, and the WCAB granted.

The WCAB found that defendant’s QME’s opinions with respect to apportionment were not substantial evidence because “the degree and/or progression of applicant’s scoliosis was not documented and [defendant’s QME] does not explain how or why he attributed one-third apportionment to the scoliosis as opposed to some other percentage.”

As neither report was complete with respect to apportionment, the WCAB ordered the WCJ to develop the record further, allowing the parties an opportunity to agree to an AME, or, in the alternative, appoint an regular physician in accordance with Labor Code section 5701 to evaluate applicant and, presumably, develop the record.

The Workers’ Compensation Appeals Board recently denied applicant’s petition for reconsideration on the issue of Labor Code section 132a in the case of Sharon Poole v. Primed Management, Inc.  The workers’ compensation Judge recommended that reconsideration be denied on procedural grounds (failure to file a verified petition and failure to serve the employer), and on the merits – applicant’s 132a claim did not meet the standard of discrimination set out in Department of Rehabilitation v. Workers’ Compensation Appeals Board (Lauher).

Unfortunately, the WCAB did not reach the merits issue and based its opinion on procedural grounds.  However, the WCJ’s report lays out the facts of the case – applicant was having discipline issues before she filed an application, and the eventual termination of her employment was related to her ability to meet production demands (a fate her career shared with many other employees who worked for this company).

The WCJ pointed out that it doesn’t matter if the applicant claims that the employer is a jerk, or the employer demands too much of its employees, or that the production quotas for employees are “unreasonably” high.  So long as the worker who hurt his knee skiing is held to the same standard as the worker with industrial carpal tunnel, 132a does not kick in.

Even if applicant comes back and says “hey, it was my industrial injury that caused me to perform poorly,” shouldn’t the inquiry focus on whether it was the industrial nature of the injury, rather than an injury that happened to be industrial, that caused the poor performance?

The employer in this case was saved by the fact that applicant’s sub-par performance was documented and a trend of reprimands had begun before the filing of the application (remember, dear readers, a trend is your friend!)  If you’re dealing with a “trouble” employee, document the problems as much as possible – you never know when you’ll be facing a self-inflicted or non-industrial injury claim and a 132a to boot!

The Workers’ Compensation Appeals Board recently denied applicant’s petition for reconsideration on the issue of Labor Code section 132a in the case of Sharon Poole v. Primed Management, Inc.  The workers’ compensation Judge recommended that reconsideration be denied on procedural grounds (failure to file a verified petition and failure to serve the employer), and on the merits – applicant’s 132a claim did not meet the standard of discrimination set out in Department of Rehabilitation v. Workers’ Compensation Appeals Board (Lauher).

Unfortunately, the WCAB did not reach the merits issue and based its opinion on procedural grounds.  However, the WCJ’s report lays out the facts of the case – applicant was having discipline issues before she filed an application, and the eventual termination of her employment was related to her ability to meet production demands (a fate her career shared with many other employees who worked for this company).

The WCJ pointed out that it doesn’t matter if the applicant claims that the employer is a jerk, or the employer demands too much of its employees, or that the production quotas for employees are “unreasonably” high.  So long as the worker who hurt his knee skiing is held to the same standard as the worker with industrially-caused carpal tunnel, 132a does not kick in.

Even if applicant comes back and says “hey, it was my industrial injury that caused me to perform poorly,” shouldn’t the inquiry focus on whether it was the industrial nature of the injury, rather than an injury that happened to be industrial, that caused the poor performance?

The employer in this case was saved by the fact that applicant’s sub-par performance was documented and a trend of reprimands had begun before the filing of the application (remember, dear readers, a trend is your friend!)  If you’re dealing with a “trouble” employee, document the problems as much as possible – you never know when you’ll be facing a self-inflicted or non-industrial injury claim and a 132a to boot!

Sit back, dear reader, and listen to the story of the case of Sandra Malvesti v. Round Valley Unified School District.  The issues of the case in chief aren’t nearly as important as what followed, when applicant’s counsel hungrily pursued the attorney’s fee.

The case had previously settled by way of stipulation, with future medical treatment included, but when applicant claimed a (quelle surprise!) new and further disability, the case eventually resolved by way of compromise and release.  Applicant’s lawyer requested a fee of 12% of the new settlement amount ($14,202.00).

Stick with me folks, here’s where it gets interesting.

The workers’ compensation Judge initially refused to approve the compromise and release, reducing applicant’s attorney’s fee because the future medical treatment was already acquired with the prior stipulations, for which applicant’s counsel already received a fee.  The WCJ was also concerned with some of the terms of the method of payment, including an annuity company.

The applicant’s attorney then produced a letter signed by applicant, begging the WCJ to approve the settlement so that applicant would not lose her house – she really needed the money!  In the letter, applicant made clear that she had no objection to the attorney fee, and just wanted the matter settled and paid.

The WCJ approved the settlement with the reduced fee, and applicant’s counsel promptly petitioned the Workers’ Compensation Appeals Board for reconsideration.  In reviewing the case, and please keep the above video in mind, the WCAB noted a letter from applicant (and not applicant’s attorney) which “accuses [applicant’s attorney] of engaging in what may be unprofessional conduct to obtain her consent to his fee request.  In substance, applicant is alleging that [her attorney] used both his claimed financial situation and that of applicant to coerce her to consent to his fee request as a condition of getting timely action on the [C&R].”

And what is the reference to applicant’s counsel’s own financial situation?  The applicant wrote that her attorney “personally asked me to sign an additional letter during this phone call stating he had not paid his house payment for 5 months, could not pay his staff and could not afford groceries for his family, … I was afraid if I did not sign the letter I would once again be put on the ‘back burner’ and my case would still be ongoing.”  (Pack your bags, boys!  We’re going on a guilt trip!)

The WCAB ordered the matter returned to the WCJ to determine if the applicant’s story holds water.  If it does, then questions of the ethical practice of law need to be explored.  If, however, it doesn’t, then applicant’s attorney is to receive the full fee, including a portion of the Medicare Set Aside, as held in the case of Robert Viale v. Lockheed Martin Corporation.  (It looks like applicants’ attorneys can expect a slice of the MSA pie as well).

As always, WCDefenseCA has declined to name names, but if your humble blogger was in this attorney’s shoes, he would drop this issue immediately and forfeit the seven thousand.  Every lawyer wants to be known by all, but not for this, one way or another.

The times, they are a-changing.  It looks like reform might be coming down the pipe pretty soon, and, courtesy of the Business Journal, your humble blogger has gotten his hot little hands on a summary of proposals.

Reviewing this summary of the proposed changes to the law, one must wonder about what fate awaits us in California.  For example, one of the proposed changes is the Independent Medical Review system, which would apparently resolve Utilization Review disputes while also narrowing the Workers’ Compensation Appeals Board’s jurisdiction over medical treatment disputes.

Other proposals include the Independent Bill Review process, which appears to be aimed at cutting down on the insane flood of liens that are strangling the workers’ compensation system; eliminate the spinal surgery second opinion process and refer the matter, instead, to the IMR; provide a minimum filing fee for liens, recoverable should the lien claimant prevail, and other excellent ideas.  An amendment to the California Constitution making this blog required reading is strangely absent from the list… lobbying dollars wasted once again!

Another one of the interesting ideas present is found in bullet point 16 of the summary – “Streamline the Agreed Medical Evaluator (AME) and QME process to eliminate unnecessary delays and friction in the system.”  Almost every contested case has a hearing on the QME specialty.  Applicants want chiropractors and pain specialists, defendants want orthopedists.  The rule clearly states that the treating physician specialty should control the specialty of the QME.

One can only hope that part of these reforms will be to give teeth to Rule 31.1(b) so that these needless hearings can be avoided.

Your humble blogger intends to keep his keen eyes on this one, because there is a good chance that several of our gripes and complaints may end up being resolved should these reforms go through.  After all, what better sign could we have as to the practicality and good qualities of these  reforms than the opposition of the California Applicants’ Attorneys’ Association?

And your humble blogger also hopes his beloved and much-appreciated readers will keep their keen eyes glued to this blog for the weeks to come for more thoughts of these (potential) reforms.

The Court of Appeal recently denied applicant’s petition for a writ of review in the case of Sharon Dunnigan v. City of Inglewood.  Applicant has engaged in a long and drawn-out quest for free home health care services, including cleaning services, following her injuries which resolved by way of stipulation to the tune of 50% future medical treatment.

The workers’ compensation Judge initially awarded applicant home care services as a form of reasonable medical treatment, but the defendant sought reconsideration by the Workers’ Compensation Appeals Board.

The WCAB, in a November 21, 2011 decision, found that defendant had a valid point – applicant failed to prove that home health care services were reasonably necessary.  At his deposition, the Agreed Medical Evaluator responded to questions about applicant’s need for home health care services by requesting additional information about what needs to be cleaned and how often it is cleaned.  The key line from the WCAB opinion?

“Although, when read in isolation, portions of [the AME’s] testimony appear to support a need for certain undefined housecleaning services, [the AME] admits over and over in his deposition that he has insufficient information to render a valid opinion.”

Because the good doctor never expressly stated that any specific housecleaning services were reasonably required to relieve the applicant from the effects of the injury, applicant failed to carry her burden of proving entitlement to a butler and maid.  And now, it appears, the Court of Appeal is of little help to her either.

Now, before you start calling your humble blogger cruel and heartless, I tell you that I take no pleasure from the suggestion that the poor applicant will now have to live in a dirty house covered in dust and cobwebs, with garbage piling up around her.  That being said, my lawyer’s mind sees this situation as one of two possible fact-patterns:  either applicant can clean the house herself and is just lazy, or applicant really can’t clean her home because of her impairment and needs the help.

If she’s just being lazy, I have no sympathy for her, and neither should you – she’s just milking the system and trying to shake down the defendant for unwarranted money.

If she’s not just being lazy, and her impairment prevents her from cleaning her own home, then why didn’t she pay attention to the AME when he was testifying at deposition?  The good doctor is clearly saying that he needs more information before he can provide an opinion – so why not give it to him?  Schedule a re-evaluation (defendant is paying for it anyway) or provide a letter describing the house and the cleaning activities it requires.

The fact that applicant did not follow up with the AME restrains my typically bleeding heart from gushing forth over and equally keeps my sharp attorney’s eyes from crying my dear readers a river over her plight.

Check the tags on your clothes.  Depending on where they were made, you might very well be wearing the bitter fruit of a law-breaking business, one which was investigated by both federal and state labor offices for, among other sins, failing to obtain a workers’ compensation policy for its employees.

10 garment factories in Southern California have been investigated, revealing some 11,000 workers pulling 10-12 hour shifts making garments without workers’ compensation coverage.  Can you imagine the cumulative trauma, psyche injury, and laundry-list of claims that could be generated by 11,000 workers spending exactly half of each day hunched over a table working?

There are many employers that do not get workers’ compensation insurance for their employees.  Sometimes, these are small operations or family businesses that don’t know about the law, or are under the mistaken impression that their employee is actually a contractor.

Although you have cases such as this one where the employer knowingly doesn’t get insurance.  This provides an unfair competitive advantage when it comes to lower prices, and drives the law-abiding businesses into the red.

From time to time, dear readers, your humble blogger has been asked why he does not comment on unpublished decisions.  As you know dear, readers, unpublished decisions are un-cite-able (although your humble blogger has a crackpot idea on how to get around that one and is waiting for an opportunity to try it).  This fine workers’ compensation defense lawyer asks you to take Hart, as you read the following employer-unfriendly post.

In the case of Hart v. Workers’ Compensation Appeals Board and Chief Auto Parts Auto Zone, applicant had a string of defeats until the case came before the Court of Appeal.   Applicant claimed he sustained an injury in 1999, and the matter was initially resolved, only to be reopened in 2004 for additional impairment both in the form of pain and to applicant’s functionality.

The parties stipulated to temporary disability for a time, primarily based on applicant’s injury to his shoulders (this was one of those cases where one shoulder was injured, leading to over-use and subsequent injury to the other).  The parties convened for a trial in 2009, at which time the workers’ compensation Judge issued a ruling on the raised issue of right to medical treatment for the shoulders.

However, when applicant sought additional temporary disability benefits because of impairment due to the cervical spine and neck, the defense cried havoc and let slip the dogs of war.  The cut-off date to claim new and further disability had been 5 years since the date of injury (1999) and had never raised the cervical spine or neck as a claimed body part until the 2011 trial on the issue.  If your humble blogger knew how to math (yes, math is a verb in this case), he could tell you exactly how many years has gone by since the date of injury.  However, using his fingers, he can estimate that at least five years had passed since the 1999 injury by the time the cervical spine was being claimed in 2011.

So when the issue came before the WCJ, the ruling went in favor of the defense and barred this late addition of a new body part.  The WCAB adopted the WCJ’s reasoning.  Unfortunately, the Court of Appeal did not agree.  The Court held that because the 2009 trial did not address the issue of applicant’s cervical spine claims, the matter was not properly heard before a decision on cervical spine-based TTD was made.

Additionally, the Court reasoned that temporary disability is a benefit made available in place of lost wages until the applicant’s condition is stabilized.  If applicant’s original injury is still causing applicant to not be permanent and stationary, even if it is in a new body part, then the applicant is still entitled to TTD.

On the bright side, however, the Court ultimately held that it “expresses no opinion as to what the ultimate ruling should be” with respect to applicant’s entitlement to temporary disability, so the defense will still have a chance to escape liability for more TTD.

It hasn’t been a good week for lien-claimant Alan Moelleken, M.D., on this humble blog of all things workers’ compensation.  In the case of Ricardo Zuniga v. Barrett Business Services, Inc., Dr. Moelleken had just recovered the cost of medical treatment through an award given by the workers’ compensation Judge on the case when the defendant petition the Workers’ Compensation Appeals Board and won a reversal.

Dr. Moelleken filed a lien for almost $9,000, after defendant had paid only $666.80 of the bills on the grounds that there was a valid Medical Provider Network in place and Dr. Moelleken was not in it.

The workers’ compensation Judge had reasoned, to Dr. Moelleken’s unending delight, that, although the defense had entered into evidence copies of letters sent to applicant (notifying him of the MPN) and to lien claimant (objecting to any treatment and putting it on notice that its bills would not be paid), there was no evidence that the letters were received.  Furthermore, the defense failed to put into evidence a value for the services provided other than zero.

The WCAB took a different approach.  With respect to the defendant’s burden of proof in showing that letters were received, the WCAB held that the “letter from defendant to applicant … is prima facie evidence of delivery of required notice to applicant of his rights under the MPN.”

But, the issue of the MPN defense aside, the WCAB went further to note that the lien claimant failed to carry its burden.  The burden of proving all elements of a lien fall on the lien claimant, including that the medical treatment provided was reasonably required to cure or relieve the injured worker from the effects of an industrial injury and that the claimed fee is reasonable.

Perhaps this goes to show that the one remaining tooth after the sad reversal in the Valdez case remains firm and sharp – even if an applicant ventures outside of an MPN, the defense does not have to pay the bills for it.

An exciting development in the ongoing insanity that allows non-California athletes, and by extension, all visiting employees, to file workers’ compensation claims in California.  In the case of Bruce Matthews v. National Football League Management Council, the 9th Circuit Court of Appeals ruled that applicant Bruce Matthews does not have the right to file a workers’ compensation claim in California, despite the fact that he did play 13 games in the Golden State.

Matthews had tried to exploit a loophole in California’s workers’ compensation system to pursue his claim in California, despite never playing for a California team in his over-twenty-year career.  His team and the NFL Management Council sought to enforce an arbitration agreement to require Matthews to bring his claim in Tennessee.

The 9th Circuit Court of Appeal was not impressed.

The reason?  “In his application for workers’ compensation benefits, Matthews asserted that he suffered cumulative injuries incurred at “various” locations between 1983 and 2001. He did not allege any specific injury in California … Indeed, Matthews did not even allege that he played football in California, although we take judicial notice of the fact that Matthews’ teams played 13 games in California during Matthews’ 19-year career.”

So what’s the 9th Circuit looking for?  Well, it looks like an applicant needs to show signs of a discrete injury, the use of California’s medical treatment system, and perhaps the use of California’s legal system in pursuing the case.  But perhaps this means that the 9th Circuit does not recognize the legal fiction of the cumulative trauma?  After all, several states only recognized “discreet injuries.”

But, most important of all, the 9th Circuit reasoned that the claim would be barred in California…  Obviously wcdefenseca is still not considered a learned treatise.