I have another story for you, my dear readers, from Texas.  Now, before you close your laptops, turn away from your screens, or shake your fist at the sky while cursing the name of your humble blogger in the language of your forefathers, I ask that you consider the story from the Lone Star State to compare and contrast, as we all did in grade school, with our quiet world of California workers’ compensation.

Comp is an interesting balance for attorneys in terms of where loyalties lie.  After all, some attorneys represent self-insured employers, and in those cases do not encounter any sort of gap between the employer and the workers’ compensation insurer.  Other lawyers represent workers’ compensation insurers, and not necessarily the employer.

A recent opinion handed down by the Texas Supreme Court holds that there is no attorney-client privilege between the workers’ compensation defense attorney and the insured employer.  In that case, the Supreme Court of Texas (or Scot) held that when an attorney sends regular updates to the employer, third-party administrator, and insurance company as to the proceedings in a case, the communications to the employer are not privileged.  Your humble blogger reached out to a nearby Texan for his reaction:

  Perhaps he was an applicant’s attorney?

So imagine that: your humble blogger sits comfortably in his office in Texas (I did say “imagine,” I haven’t closed shop and moved out on all y’all just yet), with cowboy boots on his desk and an (awesome) cowboy hat on his workers’-compensation-focused-head.

As he dreams of what life must be like in San Francisco, his insurance company client comes in and the two discuss everything under the sun about a particular case.  Then, not fifteen minutes after the insurer client leaves, the employer from the same case, still holding the insurance policy in its hand, comes in to discuss the injury, the nature of the return-to-work program, etc.  The conversation with the insurer is privileged and the conversation with the employer is not.

Furthermore, the very impressions, thoughts, strategies, etc. when put on paper and sent to both the insurer and employer would be discoverable.  And your humble attorney, after politely commenting to applicant’s counsel that he likes his “lawyer jeans” and then tells his client that jeans aren’t really appropriate for the Board (you know who you are!) will have more explaining to do.

California’s take on this question is… well… different.  For example, in the Court of Appeal case of Gregory Martin v. Workers’ Compensation Appeals Board (1997) the Court of Appeal held that when an employee speaks to the workers’ compensation defense attorney as a representative for the corporation/business, then the communication may be privileged.  However, when an employer simply instructs an employee to provide a witness statement, the communication is not.

So, at least in theory, when the attorney speaks or writes to the employer as opposed to a particular officer employed by the employer, the communication should be privileged.

Are you unhappy with the workers’ compensation Judge assigned to your case?  Want to try to get a different one?  What argument could you try that has never been tried before?  What maneuver worthy of a John Grisham novel or an episode of Law and Order: Workers’ Comp. (some day, dear readers, some day) could be used to change the tide and swing the case back in your favor?

Why not cite Labor Code section 123.5 and get rid of any workers’ compensation Judge that seems to be inclined against your case?  Wait, you mean you’re not familiar with section 123.5?  But it’s the keystone to workers’ compensation!

In the case of Olga Garau v. State of California, Department of Industrial Relations, applicant argued that her case could not be assigned to a WCJ because section 123.5 requires all WCJs to be active members of the California bar.  (It doesn’t; candidates for judgeship have to be members of the bar and must maintain membership with the State Bar during their tenure but there is no requirement that WCJs moonlight as attorneys to keep their robes.)

The Workers’ Compensation Appeals Board rejected applicant’s argument, as even inactive members are still members of the Bar.  The Court of Appeal wasn’t impressed with this “rabbit” out of applicant’s legal hat either, denying applicant’s petition for a writ of review.

So relax, dear readers, the crazy world of workers’ compensation, for lawyers, attorneys, lien claimants, and employers, remains just as crazy as before but no crazier.

Now dear readers, remember, your humble blogger is an attorney who loves crackpot ideas and tactics.  Crazy strategies are not far from this lawyer’s mind and new tactics are the reason he opens his heart and his brief case (yes, people still have brief cases) and goes to work hacking at monotony. 

But really?  Disqualifying a WCJ this way? Are there any WCJs that are “active members” of the bar in the sense that they maintain a legal practice?  Even if applicant’s theory had worked, when she finally got to a WCJ she could be happy with, wouldn’t the defense attorney use the same tactic and keep her case from ever being concluded?

We have all read the Court of Appeal opinion in the Valdez case.  Applicants can treat where they like and choose a quasi-QME to write admissible reports.  No doubt, applicants’ attorneys will guide their clients towards a balanced and honest physician with the sole aim of making applicant healthy enough to return to work, and not to inflate applicant’s impairment rating.

So, the defense is stuck with the consolation prize of not having to pay for treatment, even though it will be showered with report after report saying that the paper cut sustained at home is industrial and has caused 100% disability.

Enter the Fernando Sarmiento case.  Mr. Sarmiento filed two claims against Payroll Management Group/Blue Chip Recycling.  Applicant treated outside of the defense’s medical provider network, and defendant’s efforts to compel treatment within the MPN were met with stiff judicial resistance.

Taking its case to the Workers’ Compensation Appeals Board, the defense rightly argued that the Valdez en banc case entitled the defense to at least some protection through its MPN.  Mind you, dear readers, that this panel decision pre-dates the Court of Appeal decision by about two weeks.

But the WCAB was of little help to the defense, denying the petition for reconsideration, it treated defendant’s petition as one for removal and denied it as well.  Apparently, the defense had not (yet) proven that it had a properly established and noticed MPN.

But, the WCAB did provide a method by which the defense could prove the validity of its MPN and reap the limited benefits of the MPN and what the Court of Appeal left standing from Valdez.

Reasoning that “a defendant, as a party, is entitled to file a declaration of readiness to proceed to an expedited hearing to determine the employee’s entitlement to medical treatment,” the WCAB held that the defendant must file a declaration of readiness to proceed to expedited hearing, and prove that it has a properly established and noticed MPN.  (See: Breanna Clifton v. Sears Holding Corporation).

Lock and load, dear readers, there is yet another step in the workers’ compensation dance.

Welcome back from your Independence Day Holiday!  For some of us, it was a day of continued labor and work, honoring the tireless efforts of the founders of the nation.  For others, it was a day filled with middle-of-the-week revelry, lighting BBQs (hopefully you’re using charcoal!), grilling burgers, and celebrating the country’s independence by blowing up a small piece of it with fireworks.

However you spent your 4^th, your 5^th awaits you eagerly with work to do and a blog post to read!

Insurance Commissioner Dave Jones recently announced the grant of $600,000 to the Monterey County District Attorney’s Office to fight workers’ compensation fraud.  The DA’s office is no doubt happy to have the extra funds.  As your average level-one deputy DA makes between $56-$77,000 per year, this money could be spent to keep a few deputy DAs and investigators focusing on nothing but insurance fraud investigations and prosecutions for over a year.

However, and I believe I’ve made this point before, the press release should have read more along the lines that California’s employers have provided funds for the Monterey County District Attorney’s office.  Insurance Commissioner Dave Jones, despite his diligence in discharging the duties of his office, did not write a personal check to Dean D. Flippo, Esq. and say “good hunting!”  He collected money from California’s employers and insurers (on top of their tax payments shared by all Californians) to fund this grant.

California’s employers and insurers are right in feeling under-appreciated.  Their needs go unnoticed in Sacramento, and their efforts go unrewarded in the press.  Unless we want to send a message that the last business in California should turn off the lights on its way out, a bit more respect and appreciation should be shown to the steam behind the California machine.  We could start by acknowledging, once in a while, where the government gets these golden eggs it is so happy to hand out.

Well, your humble blogger wishes Mr. Flippo’s office the best of luck in bringing workers’ compensation fraudsters to justice.  He only hopes that Commissioner Jones will give credit to where it is due in the future!

Dearest readers, a very happy Independence Day to you all!

In honor of this holiday, I relate to you the story of Samuel Whittemore.

At the age of 80, he left his farm and family to fight in the revolutionary war, valiantly defying the red coats and their mercenaries.  At one point, he was “shot, bayoneted, beaten and left for dead, but recovered and lived to be 98 years of age.”

I only know of one person who is a modern-day Samuel Whittemore, and he is a workers’ compensation defense attorney.

So light the fires, grill the hot dogs, and watch the fireworks!

Happy 4th of July!

Insurance Commissioner Dave Jones announced the recent arrest of two business owners for workers’ compensation fraud.  As alleged, the business owners lied to their insurer about the nature of the work their employees performed, claiming it was only inside electrical work.  This resulted in a lower premium for the owners and tragedy for the family of a worker who died as a result of an injury sustained at work.

The worker was run over by a company car as he was working on a project to repair street lights in Redwood City.  After his death, a claim was filed by his family and the fraud was discovered.  The insurance company rescinded the policy and family was left without a death benefit.

The money saved by the husband-and-wife business owners was roughly $11,500 for the years of 2007 through 2009.

Fraud is fraud, regardless of who commits the act.  In this case, the fraud alleged is the employer’s and while enjoying the benefit of a smaller overhead as compared to honest competitors, the business owners shifted a considerable amount of risk to the worker’s family.

If everything is true as alleged, then this is a reckless act by an employer, but also reflects the desperation many California small business owners face.  Without making any sort of excuses for fraud, we must recognize why the “underground” economy is such a tempting one for business owners.  Somehow, the climate in California makes honest and open business practices less appealing than the “underground” or moving out of state.

By all means, prosecute the fraudsters of California, whether they are employee or employer, but let’s not forget that there are carrots as well as sticks – a more business and employer-friendly California will see less fraud and less of such harsh results for the families of injured workers.

Have you ever wondered if Almaraz/Guzman can be rejected in a case?

That appears to be what happened in the case of Emilia Olguin v. ESIS Division of Ace/USA Insurance.  The Court of Appeal recently denied applicant’s petition for a writ of review after the Workers’ Compensation Appeals Board likewise denied applicant’s petition for reconsideration.

One of the issues was whether the WCJ-appointed regular physician’s application of A/G to inflate the permanent disability rating was properly rejected by the WCJ.

The “regular physician” provided an impairment rating both under the strict AMA Guides and A/G, but the WCJ rejected the A/G rating based on Guzman III.  In fact, he cited some of the same language your humble blogger did in drafting this blog post.

In preparing his A/G analysis, this physician noted that applicant’s ratable symptoms produce a 0% whole person impairment for the left elbow and a 1% whole person impairment for the right elbow.  Therefore, according to this physician, the impairment should be rated according to A/G.  But the WCJ in this case, much like Hamlet, was unwilling to be played upon as on a pipe.  Merely saying the magic words “Almaraz Guzman” was not enough.

The physician failed to meet the requirements laid out in Guzman III, and the physician’s efforts were deemed by the WCJ “as an indirect attempt to obtain a desired result.”  The WCJ also held that, because the physician was attempting to integrate 1997 schedule work restrictions with the AMA Guides, both A/G II and Guzman III were violated.

In reviewing applicant’s petition for reconsideration, the Workers’ Compensation Appeals Board adopted and incorporated the WCJ’s report and issued a denial.  The Court of Appeal likewise denied applicant’s petition for a writ of review.

Dearest readers – with the proper amount of leg work, A/G can be stopped from inflating applicant’s impairment balloon… sometimes, it can also turn the balloon to one of lead.  And before you start rolling up your sleeves to badger the PQME into admitting that he got his degree online, he doesn’t recycle, and that he hasn’t met the standards set out in Guzman III, remember – it is the applicant’s burden to rebut the AMA Guides.  If the PQME has not toed the line and met the requirements set out by Guzman III, outline your arguments and shoot for the strict rating.

Labor Code section 4600 subsection (e)(1) requires that applicants submitting to examination by a physician shall be paid “one day of temporary disability indemnity for each day of wages lost in submitting to the examination.”  Does this trigger the limitation on maximum temporary disability payments under Labor Code section 4656 subsection (c)(1)?  In other words, if an applicant with a date of injury anywhere between April 19, 2004 and December 31, 2007 is examined by a physician, does the defendant employer/insurer’s liability for temporary disability payments evaporate two years hence?

Now, I think there is no doubt in anyone’s mind that your humble blogger would not have said “yes,” but “darn tootin’ heck yes!” (This is a family-friendly blog, after all.  Asked the same question at happy hour, the same conclusion but different language may have been elicited from this verbose blogger.)

Unfortunately, the Court of Appeal for the Third District issued its opinion on the matter before your humble blogger had a chance to share drinks and reasoning with the judges.

In the case of Meeks Building Center v. Workers’ Compensation Appeals Board (Salem Najjar), the Court of Appeal granted defendant’s petition for a writ of review only to affirm the WCAB’s decision, issuing an opinion that dropped the curtain on yet another maneuver that would have benefited the defense in those cases between 4/2004 and 12/2007.

Applicant sustained an injury in 2007 and continued to work without restrictions.  Defendant had applicant evaluated by a qualified medical evaluator and paid him temporary disability for the day of the evaluation.  Applicant continued to work but was determined temporarily disabled and restricted from work in 2009.  Defendant paid applicant TD until two years from the date of the evaluation.

After an expedited hearing, the workers’ compensation Judge found that defendant was in the right – the first temporary disability payment was on the date of the evaluation, and applicant was out of luck (and TD).  Granting applicant’s petition for reconsideration, the WCAB instead found that “the mandated payment for attending a [qualified medical evaluation] exam is not the equivalent of commencing temporary disability payments.”

The reasoning of the Court of Appeal seemed to focus on (1) liberally construing the statutes in favor of granting benefits to the injured worker; and (2) noting that the temporary disability payment owed under section 4600(e)(1) was not related to applicant’s disability or inability to work, thereby making it distinct from those temporary disability payments contemplated by section 4656(c)(1).  The single payment of temporary disability under 4600(e)(1) “is not a temporary disability benefit that triggers the cap under section 4656.  It is a medical-legal benefit intended to permit the injured worker to recover costs associated with resolving a claim.”

In all fairness, the Court has a point – garden-variety temporary disability payments on one hand and the additional benefit of a TD payment while leaving work to visit the evaluating physician are two different animals.

On the other hand, in drafting both sections, the Legislature had at its disposal lawyers, clerks, and well-read and well-educated minions who draft the language that governs our little world of workers’ compensation.  They chose to use the language of temporary disability in both section 4600 and 4656.  In interpreting legislative intent, we do have to give some weight to word choice.  Otherwise, the words “account shall be taken” should not trigger such cases as Almaraz/Guzman, and the straight AMA Guides should control.

Have you ever gotten a duplicate paycheck?  Or perhaps an invoice paid twice?  What’s the proper protocol when you know someone has made a clerical error and you have ended up with twice as much money as you’re entitled to?

From what your humble blogger can tell based on this article, when the Casa Colina Center for Rehabilitation received a duplicate payment of $225,000, they must have assumed it was a tip from the City of Los Angeles and went on as if nothing had happened.

A recent audit uncovered this and other duplicate payments from the city’s comp program, and now the City Controller, Wendy Greuel, is calling for “greater oversight.”

When we see constant studies showing that workers’ compensation is becoming unsustainable and costs of administration and treatment continue to sky-rocket, this sort of waste is unacceptable.

Rest assured, dear readers, should your humble blogger receive a check for an unearned sum, even $225,000, he would promptly return at least some of it (after a small transaction fee, of course).

In his earlier years, your humble blogger worked as a clerk in his under graduate university bookstore.  Of course, being a student, he on occasion would visit the bookstore even when he was not working there, in an effort to keep up with his studies, he would occasionally drop by before or after his shift to purchase the books he needed for the extremely demanding major of Political Science.  Now, dear readers, had your humble blogger sustained some injury while off the clock but inside the bookstore, should it have been compensable?

As far as this blogger is concerned, of course not!  Although, in all honesty, who knows how a starving college student might have seen things.  It appears that the applicant’s attorney in the case of Paul Gove (Dec’d), Sharon Gove (Widow) v. Miller Coors, LLC, would not agree.

Mr. Gove was scheduled to begin work at 2:30 in the afternoon on October 20, 2009, but appeared in his casual clothes and used the restroom facilities at his place of employ at 12:46p.m. that afternoon.  Co-workers heard a loud bang coming from the restroom, and Mr. Gove was discovered on the floor.  Medical staff was called to assist, but, unfortunately, Mr. Gove passed away roughly a month later.  The cause of death was originally ruled cardiorespiratory arrest and cerebrovascular accident, but was subsequently amended to reflect traumatic subarachnoid hemorrhage.

With an off-duty employee in one hand, and no certain link to industrial activity in the other, the workers’ compensation Judge found that applicant had not carried her burden of proof that her husband had sustained an industrial injury arising out of or in the course of employment.   The Workers’ Compensation Appeals Board and the Court of Appeal had to concur, and they did.

Unfortunately, there is not a lot of authority that comes with this case, as the WCAB denied reconsideration while simply adopting and incorporating the WCJ’s report, and the Court of Appeal merely denied applicant’s petition for a writ of review.

But in any case, it appears that merely being physically within the building where one normally works is not enough to trigger workers’ compensation liability.

And now, a little bit more about my alma mater…