Are you busy September 7?  Well, you should be!  California Self-Insurers Association is hosting the Fall CSIA conference at the Oakland Marriott.  Take a glance here.

This is a fantastic conference that I have had the pleasure of attending a few times.  Unlike the DWC conference, this conference is entirely focused on defense, with self-insured issues in particular taking center stage.

If you get the chance, I recommend going and soaking up a lot of useful information.  The presentation materials are a gold-mine of workers’ compensation information themselves, and will last you at least the year until the next presentation.

Your humble blogger has seen a lot of cop shows in his time.  Law and Order (the original of course) is a particular favorite.  From this “street-smart” education, he has come to believe that law enforcement officers are akin to adjusters and workers’ compensation defense attorneys in that they don’t like to leave files open.  And so, with considerable sadness, my world was turned upside down by the case of Stephen Seavello v. County of San Diego.

Mr. Seavello was employed as a deputy sheriff and sustained injury in the form of skin cancer to his nose in May of 2009.  Fortunately, the cancer was removed in July of 2009 and, to date, there has been no recurrence.  Utilizing an Agreed Medical Evaluator, the parties effectively agreed on a permanent and stationary date and an adjusted 4% permanent disability rating.  Everybody was on board and all was well with the world.  Then came the hitch – applicant claimed his skin cancer as a “progressive insidious disease” (PID), and claimed that the WCAB could extend its jurisdiction indefinitely for this claim.

The Workers’ Compensation Judge agreed, based primarily on the AME’s opinions, and established continuing jurisdiction over the claim.

The go-to case for PIDs is General Foundry Serv. v. Workers’ Compensation Appeals Board.  In General Foundry, the California Supreme Court found that the five-year limit on the WCAB imposed by Labor Code section 5410 does not apply to those injuries which, due to their progressive nature, present the employee with the risk of “being precluded by the statute of limitations from seeking full compensation for his industrial injury.”

In PID cases, jurisdiction is reserved “for a final determination of permanent disability when the employee’s condition is permanent and stationary, or when the employee’s permanent disability is total (100 percent) and further deterioration would be irrelevant for rating purposes.”

In Seavello, the WCJ found that skin cancer should be considered a PID.  However, the WCJ acknowledged that there is considerable division in the medical community as to whether skin cancer qualifies.  Unfortunately, the Agreed Medical Evaluator in this case considered skin cancer to be an PID, leaving the adjuster and defense attorney staring longingly at their shiny red “CLOSED” stamps.

So the good people at the County of San Diego are facing a case where applicant has been rated at 4% for skin cancer to his nose and they would like to close the file.  After all, there are only so many filing cabinets and so many shelves available.  Applicant, on the other hand, would rather keep the case open and see if any skin cancer ever comes back, no matter how far ahead in the future.  No doubt, skin cancer on another part of the body due to sunbathing for years after retiring is a possibility.

What result from the WCAB?  The WCAB granted defendant’s petition for reconsideration (get your “CLOSED” stamps ready!).  Acknowledging that the jurisdiction of the WCAB can be extended for more than five years for PIDs, the panel defined PIDs as those that preclude “a permanent and stationary determination for purposes of rating permanent disability,” citing General Foundry.

Because Mr. Seavello’s condition was found permanent and stationary and an accurate rating was given, the PID exception does not apply.  Furthermore, as the cancer was removed in July 2009, there is even less likelihood of a recurrence, although with cancer one never knows (the AME gave recurrence a 40% chance).

Of particular note in the WCAB’s reasoning was that “[b]ecause it is more likely than not that applicant’s cancer will not recur, his skin condition cannot fairly be described as progressive.”

Applicant’s petition for a writ of review to the Court of Appeal was denied.

Your humble blogger can only hope that somewhere, in Heaven, Lennie Briscoe is nodding in approval.

There are very few things that can ruin a good, sunny, end-of-the-week Friday.  One of them is, of course, realizing that it’s only Tuesday (which is fortunately avoided today).  Another, is finding a case where yet another defendant receives an unfortunate result from rolling the dice at trial.

The case is that of Randall Salcido v. California Department of Corrections and Rehabilitation (a panel decision).  Applicant was employed as a vocational teacher earning $1,584.80 per week ($1,839.60 without furloughs).  Five months prior to his injury, he had been informed that he would be transferred to the position of warehouse supervisor, which would have paid $744.17 per week ($876.40 without furloughs).

Naturally, applicant has considerable interest in having his benefits rate based on the vocational teacher position rather than that of warehouse supervisor.  On the other hand, the defense is perfectly right in expecting that indemnity should be set at the rate that they would have been if not for the injury.  So, which earnings control: those of the 52 weeks prior, or those that he would have been earning had he not been injured?

The workers’ compensation Judge found that applicant was entitled to an earnings rate based on applicant’s prior employment as a teacher, rather than his planned employment as a warehouse supervisor.  The WCAB concurred, relying in part on the Court of Appeal opinion in Grossmont Hospital  v. Workers’ Compensation Appeals Board¸ applying the two-part analysis for when there is a planned wage change.

Now, imagine, dear readers, if the tables were turned.  Applicant is told five months before his injury that the employer will be promoting him from a warehouse supervisor position to a vocational teacher position.  The promotion will include a 100% increase in wages.  Two days prior to the planned promotion, applicant sustains an injury.  What result in a dispute over what the indemnity benefits should be?

The policy, it appears, is to provide temporary disability benefits reflective of an applicant’s “productive capacity” rather than actual earnings.  The WCAB also expressed concern that “to hold that applicant’s temporary disability rate should be decreased due to applicant’s loss of income based upon his employer’s determination to demote him would create an incentive for employers to downsize their workforce to reduce their liability for temporary disability.”  The WCAB was not equally concerned with workers faking or intentionally sustaining injuries to avoid the decrease in income associated with planned and scheduled transfers.

For the sake of your continued good health, my dear readers, your humble blogger can only hope you have no scheduled demotions on the horizon.

So Stewie commits a crime and gets convicted.  He gets sentenced to serve time at the Los Angeles County Jail.  While there, he gets put to work as a cook for the county jail, and sustains an injury to his shoulder while going about his duties.  Is the County now on the hook as a workers’ compensation insurer?

And so we review the case of Stewart Espinoza v. Los Angeles County Jail, a writ denied case.

Applicant claimed that he thought his job as a cook was voluntary and that he was receiving more and better clothes and food because of doing this job.  Los Angeles County, on the other hand, had a slightly different understanding of the nature of the relationship.

Citing Penal Code section 4017 and Government Code section 25359, the County Jail put applicant to work without making him an employee or tucking him under the warm and protective covers of California’s workers’ compensation system.

The workers’ compensation Judge, however, found that the county had not established that the work was “compulsory” because applicant sang “hi ho, hi ho, it’s off to cook I go…” before starting his shift every day.

The Workers’ Compensation Appeals Board, in granting defendant’s petition for reconsideration, was not persuaded by the WCJ’s reasoning.  “If an inmate is directed to work by the Sheriff, the work is necessarily not voluntary.  Applicant’s subjective belief that he was not required to work is not conclusive in view of the County ordinance providing County with the means to compel work.”

Your curious blogger can’t help but wonder – why wouldn’t every county enact such an ordinance and avoid liability for injuries sustained by inmates?

Labor Code section 5402 is a cruel mistress – the burden is placed on the defendant to deny a claim within 90 days of the ink drying on a claim form, otherwise the applicant gets to enjoy the presumption of compensability.

But what happens when an applicant doesn’t raise the issue at trial?

After all, California’s world of workers’ compensation is not a game of rock-paper-scissors and not every conceivable issue may be raised at trial.  In the case of Maria Rosas v. S & S Resort Management, that’s exactly what happened – applicant’s claim was not denied within 90 days but the issue was not raised at trial.

In her petition for reconsideration, applicant argued that the workers’ compensation Judge erred by not applying the presumption in her favor without it being raised.

The Workers’ Compensation Appeals Board rejected the claim.  Reasoning that, without the issue of a timely denial being raised the defendant was not on notice to prepare evidence and arguments to show a timely denial, and applicant’s claim would therefore unfairly prejudice the defendant.

So what does this mean for the defense community?  Even in cases where a denial was not timely made within the 90 day period afforded by Labor Code section 5402, the defense should not limit itself and push forward with all necessary evidence at trial.  Applicant’s counsel may just waive the presumption.

For an example of the presumption being rebutted, see this post.

Is there something about being in Sacramento and working for the CHP that makes one more likely to commit workers’ compensation fraud?  Is seeing California’s finest politicians hard at “work” in the state’s capital a source of inspiration for those that so effectively patrol our highways?

Back in April, your friendly neighborhood blogger reported on the workers’ compensation fraud charges lodged at Tony Yao, a California Highway Patrol officer in Sacramento.  My more interested readers can track the result of that case here.

But now, it appears that lightning has struck again, with the Sacramento District Attorney’s office accusing Officer Brian Christopher Hansen of faking an injury to collect workers’ compensation payments.  Normally, WCDefenseCA does not like to name names, but in cases of alleged fraud and criminal activity this rule is waived.

Sub rosa video showed Hansen moving furniture, driving for long periods of time, and picking up heavy objects with no signs of impairment, all while on leave because of a back injury that left him with restrictions that precluded his ordinary duties – even limited office duties.

According to this nifty device from the Sacramento Bee, in 2008, Hansen made $88,133.55, and in 2009 he was paid $83,906.26.  Was this not enough?  Is the job of a CHP officer really so horrible and the pay so meager that an injury needed to be faked?

Well, WCDefenseCA wishes the DA’s office the best of luck in obtaining a conviction, and hopefully recovering some of the money improperly obtained by Mr. Hansen.

When you’re dealing with a litigated workers’ compensation case, depending on applicant’s counsel, the situation can get hectic at times.  Some applicant’s lawyers just have a job to do, and are eager to get a fair and speedy settlement for their clients.  Some, on the other hand, use the age-old tactic of gaining their clients no ground, but winning themselves a reputation as an unpleasant attorney to deal with.

But that’s all part of the territory and isn’t anything special.  Then you have the cases where the applicant decides to take the reins and drive the wagon train to Unpredictable Town.

Such appears to be the case in Linda Aiello v. Library Systems Services, LLC.  There, Ms. Aiello settled her case by compromise and release while represented by counsel, agreeing to a $38,000 settlement to resolve her claim.  The C&R was approved by the workers’ compensation Judge and everyone lived (almost) happily ever after.

Ms. Aiello decided to file her own petition for reconsideration, without the assistance of counsel, alleging that the order approving the compromise and release was not justified by the record.  Now, dear readers, I will allow you an opportunity to guess whether Ms. Aiello thought she was being paid too much for her claim or too little.

The theory for the petition was that, although the settlement agreement relied on the reports of the panel qualified medical evaluator (rating at 33% PD), the treating physician actually rated out to 54%.  Also, the compromise and release agreement failed to provide for future medical treatment.

The WCJ, in her report, noted, quiet aptly, that “[a] change of heart is not sufficient basis to set aside an Order.”  And the Workers’ Compensation Appeals Board seems to agree.

Of course, applicant also argued that she “did not receive [or see] a copy of her medical reports until after signing the settlement.”

Here is what your humble oft-confused blogger always wonders about these cases – if you’re alleging that your attorney didn’t do a good enough job, why are you bothering the defense?  Not to imply that Ms. Aiello’s attorneys did an inadequate job – it appears they represented her interests and secured for her a settlement.

But if she is saying that they did an inadequate job, failed to keep her informed, and settled for far less than they should have, why does the employer have to waste attorney and adjuster hours in dealing with this claim and be put at risk for more liability?  There is probably another type of insurance (it starts with the letter “m” and rimes with “pal-practice”) which exists specifically to address these issues.

Disputes between applicants and their attorneys should be resolved in the legal malpractice arena and the defense should be left out of it.  Perhaps then applicant can get a taste of a system legally stacked against her, which is the world the defense community lives in year-round and the atmosphere in which she brought her claim.

Spinal surgery has been in the news recently… sort of.  The issue that has captured the attention of the media, the California Workers’ Compensation Institute, and even the legislature, isn’t the need for “actual” spinal surgery, but the removable spinal implants, commonly known as neural stimulators, which are performed over the course of an hour or so in out-patient settings.

Currently, Labor Code section 5318, allows “implantable medical devices” to be reimbursed separately at the provider’s cost, with an additional $250 in fees.  The problem with this is that the procedures (not just the equipment) already reimbursed and provide for the cost of the equipment.

Senate Bill 959, recently sent to the Committee on Insurance, would repeal section 5318, allowing for the (sane) reimbursement scheme under the Official Medical Fee Schedule, allowing for the insurer/self-insured employer to reimburse the cost of the procedure, and the facility performing the procedure to pay for the equipment out of that reimbursement.

According to the CWCI, the double-dipping of these devices and similar equipment increased the cost of claims by an average of $20,137 in 2010 (or adding $67.5 million dollars to the cost of doing business in California).

Here’s hoping the legislature delivers (and quickly).

The Workers’ Compensation Appeals Board recently affirmed a workers’ compensation Judge’s award of sanctions and costs against an attorney representing lien claimants.  The WCJ had found a pattern of failing to appear or appearing late.

The case is that of Ramona Anaya v. Port Hueneme Unified School District.  The attorney for the lien claimant (recall, dear readers, that your humble blogger does not like to name names) apparently caused six of the eighteen delays in the case, providing various excuses of illness, vacation time, and other excuses.

Under Labor Code section 5813 and Code of Regulations section 10561(b)(1), the WCJ found that the long string of delays, which resulted in a lien trial finally happening on December 16, 2009 after being originally set for November 15, 2007.  That’s right, the delays added up and the lien trial had to wait two years from its original date.

Just so we’re not losing sight of the difficulties experienced by the self-insured employer in this case, the date of injury is January 25, 2002.  This means that for more than 10 years, this file has remained open and required the attention of an adjuster and an attorney to keep it current as it consumed hours, sunlight, desk space and, to some small extent, the good will and sunny disposition of the defense professionals connected with it.  As new files came in, this one lingered and added to the pile.  Two of those years can be attributed to this lien issue.

The WCJ found that, although the attorney appeared to have an excuse for every delay, section 10561 allowed for the imposition of sanctions upon the finding of a pattern of delay and non-appearance, even if justified.

The attorney fired back that the other 12 delays were not caused by her, and that the WCJs had all conspired to punish her and her clients in all of her cases.  The WCAB didn’t really address the conspiracy allegation, simply noting that it was made in the attorney’s briefs.

From what your humble blogger has observed, there is not so much a conspiracy against lien claimants as a widespread frustration with the effect they are consciously and collectively having on the workers’ compensation system.  Even applicants’ attorneys must recognize that money wasted on these liens is money out of their clients’ respective recoveries, and perhaps the age-old tactic of using lien claimants to drive up the costs to the defense of not settling has started to backfire.  After all, even the most useful scorpion eventually stings its master.

As to delays allegedly caused by the defense, the WCAB simply noted that “it is [not] relevant whether defendant caused any of the other continuances because defendant’s behavior is not at issue.”

The sanctions held up, as did the defense’s attorney costs.

Now, before my dear readers shake their heads at the calloused and insensitive writings of their cold-hearted blogger, allow him to say the following in his defense.  Everyone gets sick from time to time, scheduling conflicts arise, and continuances are needed here and there.  They can be frustrating and wasteful, but necessary at times.

But here, we’re looking at two years of delays before a trial finally happened – many of these delays were reported on the date of the hearing when they should have been noticed ahead of time to avoid unnecessary preparation and travel.  Even if these delays were the product of the lien-claimant’s attorney’s bad luck, it seems unreasonable that the defense must continue to suffer the effects of the attorney’s ill fortune.

The defense’s time was wasted.  The WCJ’s time was wasted.  And most of it could have been avoided with proper regard and diligence.

When a wall collapses at a work-site, you can be pretty sure that a Serious and Willful Misconduct Petition under Labor Code section 4553 will follow.  However, it appears that a contract or budget dispute may work as a defense to the claim.  That’s what happened in the case of Arnold Farpella (Dec’d) v. R & L Brosamer, Inc.

Applicant was working near a supporting wall for a Cal-Trans contractor when it collapsed.  As he was running away from it, he sustained injury to his left ankle and foot, as well as his right shoulder.  He later sustained a psyche injury in the form of depression.

The matter was settled by way of compromise and release with a Thomas finding, but applicant passed away, and his widow filed a petition for increased benefits under Labor Code section 4553.  The theory was that defendant-employer knew that the wall was unstable and had done nothing to correct the danger posed to the workers, including applicant.

At trial, the evidence essentially showed that the supporting wall was built upon bad soil (running sands), and the wall collapsed from the construction activity around it when the ground beneath it gave way.  Apparently, neither Cal-Trans nor defendant were aware of the condition when the work contract was signed, and upon discovering it the employer was in the process of obtaining approval and funding to address it.

The workers’ compensation Judge found that there was no evidence of serious and willful misconduct – just a poor location for a wall and, at most, negligence.  Applicant’s widow petitioned the Workers’ Compensation Appeals Board for reconsideration, but the WCAB was not persuaded.

The interesting thing in this case was that the contract dispute tipped the balance at least enough to show that there was no intent on the part of the employer.

Serious and willful misconduct is a difficult standard to prove – and rightly so.  The applicant is alleging that the employer committed a borderline criminal act.  Fortunately, the fact that the employer’s hands were tied as to repairing the wall allowed for sanity to prevail.