On Monday, I described to my dear, beloved readers the pickle in which I found myself on Thanksgiving.

Well, let’s look at the course of events.  The fight happened at work, while cousin Milosh was engaged in his duties of broom-making, and he sustained injuries as a result of the fight with his co-worker.  As I litigated against my fourth serving of turkey that evening, I started thinking about Milosh’s case and whether the initial physical aggressor defense (“IPAD”) would bar claim against the broom factory’s insurer.  With his sad face right across the table from mine, I kept pondering the possibilities.

Let’s start with the basics.  Labor Code section 3600 lays out that liability for work-related injuries “exists against an employer for any injury sustained by his or her employees arising out of and in the course of employment,” except for certain instances.  Labor Code section 3600(a)(7) lays out a defense to workers’ compensation claims that “arise out of an altercation in which the injured employee is the initial physical aggressor.”  Simple enough, right?  If you pick a fight and you get hurt, you get nothing.  Well, not so much.

As dear cousin Milosh’s situation demonstrates, determining who actually started it can be difficult at times.  In the definitive case on this issue, Mathews v. Workers’ Compensation Appeals Board, the Supreme Court held that “[h]e who by physical conduct first places his opponent in reasonable fear of bodily harm is the ‘initial physical aggressor.’”

In Mathews, the applicant was told by a co-worker in charge of directing traffic at a construction site that his truck was blocking traffic and would have to be moved.  Matthews replied with vulgarity and an obscene gesture, and the co-worker responded similarly. The co-workers started walking away and Mathews got out of his truck and started walking towards the co-worker with his fists clenched.  The co-worker drew a line in the dirt and told Mathews not to cross it while picking up two rocks.  When Mathews lunged at the co-worker, the co-worker struck him in the head with a rock.

The Supreme Court held that no physical harm or physical contact is necessary to be the initial physical aggressor, “[u]nder appropriate circumstances clenching a fist or aiming a gun may be sufficient to convey a real, present and apparent threat of physical injury.”

But what about name calling and spitting?  After all, as my great uncle Patty used to say, “he who tolerates insult invites injury.”  The Workers’ Compensation Appeals Board has had many opportunities to deal with such situations.

For example, in the panel case of Charles Thomas v. Los Angeles County Metropolitan Transit Authority, a bus driver sustained injury after an altercation with a passenger who refused to pay her fare.  When the bus driver stopped the bus and called the police, for which he was treated by the passenger with a barrage of racial slurs and a verbal battle over the applicant’s ancestry and abilities.  The bus driver got off the bus to wait for the police.

Then, the passenger followed the bus driver off of the bus and spat in his face.  At that point the bus driver grabbed the passenger and they went down in a fight, from which he sustained injury.  In finding the IPAD didn’t apply, the WCAB reasoned that applicant’s fear of the transmittal of hepatitis or AIDS was enough to satisfy the test set out in Mathews,

Similarly, in the case of Richard Galindo v. MV Transportation, Inc., a bus driver sustained various injuries after an altercation with a juvenile passenger.  The juvenile was using profanity on the bus, and so the bus driver pulled over and asked him to get off.  Before getting off the bus, the juvenile spat in the bus driver’s face and arm.  When the bus driver followed the juvenile off the bus, the juvenile came face to face with the bus driver and threatened to beat him up.  A fight ensued and the bus driver sustained injury.  The WCAB held that the combination of the threat of violence and the spitting was enough to satisfy the Mathews requirement.

But it’s important to distinguish between an initial physical aggressor and an instance of horseplay or “skylarking.”  For example, in the case of Sergio Nufio v. Bridge Hospital, LLC, applicant was engaged in horseplay, while another worker was not and started a real fight.  Because Mr. Nufio’s acts, in initiating the altercation, were not acts of aggression but rather subjective acts of horseplay, the initial physical aggressor defense did not apply – the victim of Mr. Nufio’s horseplay was the initial physical aggressor.

There are also issues of proof to consider.  Just like in grade-school, once the fight is over, each combatant says two things: (1) he started it; and (2) I won.  The defense will often-enough come down to credibility and proof.  In Tori Vargas v. State of California Department of Mental Health, the WCJ found that Ms. Vargas’ version of the facts was not credible, and that she was the initial physical aggressor.  Similarly, in Anderson v. G-3 Enterprises, the question of whether or not applicant was the initial physical aggressor was decided by a neutral witness not involved in the fight – each combatant having testified that the other had started it.

So, what do you think, dear readers? Does my poor cousin Milosh have a claim?  Come back on Friday for your humble blogger’s thoughts.

Recently, your humble blogger enjoyed the wonderful pleasure of seeing his extended family for Thanksgiving.  The table was buckling under the weight of the food, dishes as far as the eye could see, the fireplace was roaring in bold defiance of the local anti-wood burning ordinance, and the drinks flowed generously to ease the close proximity of so many family members suddenly together in so small a room.

As your humble blogger helped himself to another slice of turkey, cousin Milosh sat glumly at his seat, with no appetite to speak of and a big black eye adorning his ridiculously pale face.

I invited Milosh to the kitchen as I mixed him one of my famous “workers compensation Old Fashioned” cocktails.  “Milosh, I asked, why so glum?”

Milosh sadly related the tale.  He was at work at the local broom factory when he got in a fight with a co-worker.  Aside from the shiner on his eye and his bruised ego, he also hurt his back when he fell during the fight.  In fact, I had heard the story from a mutual friend.  The friend happened to be there during the last stage of the “altercation,” and saw the co-worker get the upper hand.  When the co-worker was finally pulled off my cousin Milosh by the supervisor, Milosh’s only words, whispered weakly from the floor, were “I was winning.”

The worst part of it all was, of course, that Milosh couldn’t work because of his injury – it hurt to pick brooms up, to test-sweep the brooms, or even to scatter refuse on the floor of the broom factory to be test-swept by the brooms.

“Isn’t the employer’s insurer picking up the injury as part of workers’ comp?” I asked, already feeling dirty for directing an injured worker to a system that no one except applicants’ attorneys and doctors were feeling especially thankful for on Thanksgiving day.

“I asked,” said Milosh, “but the insurance adjuster wrote me a letter saying that the claim is rejected because I was the initial physical aggressor.  I didn’t start the fight, but I guess you can’t get workers’ comp if you win.”  Granted, my knowledge of workers’ compensation is limited, but I had never heard of the “only losers recover” rule.  And, from what I heard, cousin Milosh didn’t exactly carry the day…

“How did the fight start?”  I asked, as Milosh and I moved over to the window to take our turn at watch against vengeful wild turkeys…

It appears that a co-worker, who goes by the nickname “Nasty Nate”, came up to cousin Milosh and said some unpleasant things about his broom-making skills.  Nate then grabbed a handful of broom bristles and threw them at Milosh.  Milosh immediately turned around and spat at Nate.  Milosh claims that the spit was aimed for the broom-factory floor, but landed on Nasty Nate’s broom-making boots by accident.  Nasty Nate then charged Milosh, who curled into a ball on the floor bravely held his ground and fought back.

“You’re a workers’ compensation lawyer, do you think I have a case?”

“No,” I answered, based purely on defense-attorney instinct.  But then the Thanksgiving spirit kicked in and I decided I should probably think about it and give Milosh a real answer.

To my dear, beloved readers, your humble blogger sends out his more heartfelt wishes for a happy Turkey Day.  Going to the stores, it may appear that there’s no Thanksgiving… only Halloween and Christmas.  But Thanksgiving is there.  All across California, tomorrow’s dinner tables will provide a forum for widely differing intra-family political opinions to come pouring out, for freshly minted lawyers to brag about passing the bar (or hearing “better luck next time”), and for turkeys to regret accepting extra helpings of food in the previous months.

Your humble blogger will eagerly await your return on Monday.

Happy Thanksgiving!

Sometimes, the item holding up a perfectly good settlement is the issue of whether an injured worker is willing to permanently sever his or her relationship with the employer.  After all, no all workers’ compensation claims are about real injuries – sometimes the they are just one other instance in a feud between an employer and an employee.

Labor Code section 132a prohibits employers and insurers from discriminating against employers for discriminating against employees who file for workers’ compensation benefits, but typically a resignation is a necessary part of settlement for the purposes of a Compromise and Release (as opposed to stipulations).  But what about issues of hiring and, more importantly, re-hiring?

The Court of Appeal recently issues an unpublished opinion in the matter of Homeport Insurance Services v. William Lundy.  Lundy had sustained an injury and sought benefits under the Longshore and Harbor Workers’ Compensation Act.  Part of the big cash settlement was that Mr. Lundy would never seek re-employment by any of Homeport’s insured employers again.

Mr. Lundy, after cashing his check, started taking jobs from his union hall for the same employers, and Homeport sued for specific performance of the agreement.

The Superior Court Judge granted plaintiff’s motion for summary judgment, and Mr. Lundy appealed, arguing that Labor Code section 132a and general public policy prohibits the enforcement of this clause in the contract.

In its (unfortunately) unpublished opinion, the Court of Appeal affirmed the trial Judge’s ruling, reasoning that a contract is a contract is a contract, and whatever public policies are stated by Labor Code section 132a fail to override the public policy of encouraging settlement and protecting the parties’ rights to contract for their mutual benefit.

Now, your humble blogger can’t help but wonder about the ripple effect of this opinion.  Granted, there is no citable authority as yet, but employers often have very good reason to be rid of a litigious employee.  Often enough, a good, solid employee that is the victim of an unfortunate accident at work has the support of his or her employer who wants him or her back – good help is very hard to find, after all.

But there are also lazy employees who resent their employers, and think of workers’ compensation as a form of “blue collar lotto” where the slightest paper-cut should entitle them to a life of jobless ease.

So, what’s to stop an employee from resigning as part of a Compromise and Release from immediately applying for his or her old job?  “Hey – you’re going to need someone to fill that post, and who knows it better than me? You won’t even need to train me… I did this job for five years already.  What? You won’t hire me?!?  That’s just because I filed a workers’ comp claim!  That’s discrimination!”

There have been past cases on similar facts.  For example, in the writ denied case of Lois Wood v. County of Alameda, the WCAB upheld the WCJ’s finding that employer had violated LC 132a in failing to return workers to vacant positions when objectively more qualified applicants were seeking that same position.

Similarly, in the writ denied case of Michael Phillips v. City of Rialto, the WCAB also affirmed the WCJ’s finding that the employer had violated LC 132a when it failed to follow its own policy of rehiring past employees after layoffs if the same position should become available.  But neither of these cases dealt with employees resigning as part of a settlement agreement and then re-applying for the same position.

Whatever results this effort might have at trial, the employer would still be faced with the prospects of potentially costly litigation.

Perhaps this is a strategy worth exploring – having the employee agree to never seek re-employment with the employer, or at least for a number of years (10-15).  At the very least, such a maneuver should take the issue out of the “fuzzy” law of workers’ compensation and into the cold, merciless review of the Superior Court. 

Another blow for lien claimants in California, and a big boon for the rest of us!

The Workers’ Compensation Appeals Board has issued an en banc opinion in the case of Tito Torres v. AJC Sandblasting.  The case-in-chief had already resolved (in 2005) and a lien was filed by Green Lien Collections for a lien claimant in 2010.

Prior to proceeding to trial, the workers’ compensation Judge warned the lien claimant:  “should it choose to proceed to trial without benefit of evidence or testimony that the Court would sanction Petitioner for frivolous waste of Court time and assess costs against it.”

But, not heeding the warning of the WCJ, the lien claimant proceeded to trial, relying on one solitary scrap of evidence:  an unsigned insurance form from the lien-claimant.  No written description of goods or services was included… just a total bill.  In his report, the WCJ described lien claimant’s actions as a “cavalier use of the limited Court time and resources.”

The lien was disallowed and sanctions were imposed, so the lien claimant filed a petition for reconsideration.  Things only got worse for the lien claimant from there…

In its en banc opinion, the WCAB noted that, “[w]hile this decision does not annunciate any new legal principles, we deem it necessary to act en banc because of a number of lien claimants who persist in disregarding existing law as to their burden of proof and repeatedly proceed to trial on lien claims that are so lacking in evidentiary support and/or presented with such a total disregard of existing aw as to be frivolous.  These lien claimants overburden the system, waste the limited resources of the [WCAB] and squander valuable calendar time, which otherwise could be used to address the claims of injured workers.” (Emphasis happily added by your humble blogger.)

So, what’s the real skinny on the WCAB’s holding?  Well, first-off, the WCAB held that the 1993 amendments to Labor Code section 3202.5 and section 5705 invalidated the California Supreme Court decisions in Keifer and Garcia, “insofar as they held that a lien claimant can establish a prima facie right to recovery simply by introducing a billing statement showing that services were provided to a worker in connection with a claimed injury.”  Additionally, the WCAB held that bringing an evidentiary knife to a lien-trial gun-fight “is frivolous and constitutes bad faith within the meaning of section 5813 justifying an award of sanctions…”

Now, bear in mind, dear readers, your humble blogger has witnessed steadfast defense attorneys bearing verbal lashings from WCJs for refusing to pay up on “minor” liens and wasting the Court’s time by demanding that the lien claimant produce documentation sufficient to meet its burden of proof prior to payment.  (Your humble blogger invites you to contemplate the money being “wasted” and where it came from; only one party actually pays for the workers’ compensation system.  Here’s a hint – the name of this party begins with the letter “E” and rhymes with “lawyers.”)

So if you encounter a WCJ wanting a pound of flesh for keeping the lights in the courtroom on, point to this case and invite surgery upon the lien claimant.  Thanks to this case, the defense has citable, binding precedent for recovering attorney fees for frivolous trials.

Here’s another thought – if you’re in a situation such as this, you might not have the benefit of the WCJ warning the lien claimant that a beat-down is coming unless it can “produce the goods” at trial.  So, it might be a good idea after the deadline to serve exhibits has expired, to write a letter to that effect.  (Attorneys should consult Rule 5-100.)  This should help lay the groundwork for recovering attorney fees down the line.

What happens when the defense does not comply with Labor Code section 4610?  Well, if you ask a lien claimant or one of their reps, the answer is pretty clear – there may be good in the world, there may be evil; some things may be right, or may be wrong; it’s even possible for the world to be flat… but if the employer fails to go through the UR dance, the lien claimant automatically gets paid and the adjuster has to watch the lien-claimant drink a delicious milkshake and isn’t allowed to ask for a sip.

The Workers’ Compensation Appeals Board has a slightly different take on the issue.

Labor Code section 4610 lays out the general rules regarding Utilization Review.  In the case of Thomas Coffin v. Robert Munson, Inc., a lien claimant sought to have the employer’s insurance company pay out for various self-procured medical treatment items after the insurer declined to pay for Utilization Review.

Unimpressed with lien-claimant’s bill, the defendant allowed the matter to proceed to a trial and presented no evidence.  Lien-claimant, on the other hand, presented evidence of various physicians prescribing the medications that lien-claiming provided over a 25-month period.  As the trial was nearing a close, lien-claimant was dreaming of how it would spend its $27,411.35 as claimed in the lien… until that fantasy bubble was burst by the workers’ compensation Judge’s finding in favor of the defense.

Lien-claimant had failed to provide documentation that any of the prescribing physicians were applicant’s primary treating physician as required by Labor Code section 4600.  In fact, lien-claimant failed to provide any documentation that any of the physicians prescribing the medication provided by lien-claimant were the primary treating physician at any point.

Furthermore, there was no evidence that the reports requesting the treatment were served on the defense or that they complied with California Code of Regulations section 9792.6(o).

In denying the lien-claimants petition for reconsideration, the WCAB incorporated the WCJ’s report.

Adjusters are often overworked and spend their days watching the piles of papers stack up around them as they scramble to keep up.  So, naturally, it is often easy to send everything to Utilization Review.  Sometimes, that doesn’t happen, but that doesn’t automatically mean that the defendant becomes liable for the requested treatment.

As this case shows, the burden is always on the lien-claimant to prove that the treatment was reasonable and necessary.  And for treatment to be reasonable and necessary (read: paid for by the defense) the primary treating physician needs to be in the picture.  That wasn’t the case here and the defense managed to dodge over $27,000 in bills.

Are you ready for another boring post about how to properly perform an internal calibration of your task assignment system in workers’ compensation?  It’s very important for all adjusters to take notes on this post because it can get pretty complicated and math-heavy…

Now that all the applicants’ attorneys and applicants have stopped reading… on to the real post!

The other night, your humble blogger sat at a kitchen table with his elder cousin Jeffrey.  Through a mixture of adoptions, arranged marriages, one duel with pistols at dawn, and some babies switched at birth, Jeffrey became your humble blogger’s oldest cousin, and at sixty-five years young, remained eternally optimistic about all things.

Cousin Jeffrey related to me the news that had him extra-optimistic: he had finally decided to ask out the love of his life.  He had known her in highschool and had even asked for her phone number, but had been biding his time for the perfect moment to call her.  Now, after almost five decades, the time was ripe and he was going to make his move.

Your humble blogger has this advice to you, my readers:  in matters of the heart, do what feels right; in matters of workers’ compensation, do not hesitate and make your move early!

Such advice would have been of some use to the applicant in the matter of Elsa Serrano v. ITT Cannon Electrics.  Therein, the defendant had successfully sought dismissal of two cases, and a notice of intent to dismiss was served by the Board and the defendant in January of 2010.  The order was signed in June of 2010, and this time the defendant alone served the applicant and her attorney with the order.

Applicant attempted to file a new application in 2011 for the same injury, but was barred by the statute of limitations.  So, applicant attempted to contest the dismissal of her previous applications (some fourteen months after service of the Notice of Intention to Dismiss).  Applicant testified to never having been informed of the dismissal by her attorney until recently, and that the Proof of Service for the Order had an incorrect zip code (off by one digit).

Based on this, the workers’ compensation Judge ruled that the Order was not final (due to defective service) and allowed applicant to contest the dismissal.  When the defendant sought reconsideration, the WCJ cited California Code of Regulations section 10500(b), noting that all final orders must be served by the Board and not be designated to other parties for service.

The Workers’ Compensation Appeals Board, on the other hand, was not of the WCJ’s mind.  In granting defendant’s petition for reconsideration, the WCAB reasoned that a harmless error, such as an incorrect zip code, is not good cause to rule a previous order of dismissal as anything other than a final order.  The applicant did not even testify to not having received the order, but rather that she couldn’t remember if she had.

According to the United States Postal Service, an incorrect zip code will result in a delivery delay.

So, dear readers, while it is never too late for love, and never too late to try new things, workers’ compensation is a place where the early bird gets the worm, and for the defense, the waiting is the hardest part…

watch?v=4mDcZGRKQ_M

Ever wonder why the law enforcement seems more inclined to go after workers’ compensation fraudsters on the employer side rather than the employee side?  Ever wonder why bears don’t look for honey in wasps nests?  Be like the bear – follow the honey!

watch?v=EqWNhDohn6Q

A recent story stumbled upon by your humble blogger tells the tale of John and Camille Applegate, owners of Hallmark Roofing, have reportedly sold their home to pay $200,000 to law enforcement officials as part of their restitution for several years of operating without workers’ compensation insurance and cheating their way out of paying taxes.  This allowed them to underbid several of their competitors for various contracts.

When gubmn’t finds out that an employer illegally operates without insuring against its employees’ injuries, law enforcement officials are swift to act in investigating and prosecuting offenders.  Must swifter, typically, than when an employee is defrauding the employer or the employer’s insurer.  Fraud divisions of various law enforcement organizations actively go out seeking contractors offering to do jobs and then checking them for insurance.  The efforts are considerably less energetic when it comes to catching employees engaged in fraud.

In fact, most insurers and self-insured employers have discovered that, unless the case is presented to the district attorney with a slam-dunk basket of evidence including surveillance, documentation, medical reports, and a tidy cover-letter drafted by a former investigator or deputy district attorney, making the case for the D.A.’s office, not much will get done.

The above-referenced story is why – once an employee cheats an employer out of compensation, that money is spent and gone.  You can’t get back the damaged personal property or funds spent on personal services.  You also can’t hope to recoup your cost of investigation.  The D.A.s’ offices, well aware of the economics of the situation while busy tightening their belts against dwindling budgets, follow the honey and avoid the wasp stings – the employers have something to take.

So, the next time you are competing against a rival for a bid or a contract, bear in mind that their price might not account for (1) insurance premiums; or (2) investigation of insurance fraud.  Yours does.

Everybody loves a good movie.  Well, almost everybody.

Recently, the Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration in the matter of Clemi Boubli v. Cast & Crew Payroll Services, Inc.  One of the interesting aspects of the petition for reconsideration was that the workers’ compensation Judge had refused to accept into evidence subrosa video tapes of applicant engaged in various activities.

Applicant sustained an injury to the head, brain, psyche, back/cervical spine, and bilateral shoulders while employed as a stage technician on March 22, 1997.  The parties brought their disputes to an Agreed Medical Evaluator, who found applicant was totally permanently disabled and needed a whole host of in-home care and various services.

Defendant subsequently ordered over 160 hours of surveillance which yielded roughly seven hours of videotape, which it promptly sent to the AME (with a crate of microwaveable popcorn).  The AME, upon seeing applicant’s various activities in the video tapes, immediately changed his opinion and drastically reduced applicant’s impairment rating and need for in-home services in a supplemental report.  Rumor has it that the seven hours of surveillance ruined the AME’s plans to watch the hit film, Marley and Me, allowing a co-worker to blurt out how the movie had ended and thereby ruining the experience for the AME.

When the matter proceeded before the WCJ, she ordered the report stricken and the tapes deemed inadmissible.  In her report and recommendation, the WCJ reasoned that the tapes should be excluded because (1) defendants only turned over 9 of the 10-24 video tape cassettes; (2) the subrosa film consists of a very small percentage of applicant’s activities on the days of surveillance; (3) the videotapes depict applicant with her caregivers doing activities which are recommended by her doctors; (4) the video tapes are not substantial evidence, even if admissible, and should be given no weight.

The WCAB, however, rejected the WCJ’s analysis and ruled the tapes are admissible, and that “no good reason has been shown to exclude them from the record.”  Although the applicant retains her ability to challenge the tapes if they do not actually depict her, or to depose the AME to explore his opinions as to the weight of the tapes, the tapes should not be excluded for the reasons stated by the WCJ.

Here’s one thought from your blogger – if the parties elect to bring their disputes to an Agreed Medical Evaluator, it is usually because they trust this AME for his medical competence and unbiased disposition.  On what grounds is the WCJ to substitute her own evaluation of the tapes for a medical professional’s?  After all, the AME reviewed the tapes and, in a supplemental report, wrote that applicant “has the capacity to perform at a much higher level than what she indicated to her examiner … I can no longer recommend services which are given in my previous report based on the current information…”

Some members of the defense community hesitate to use surveillance as a means of influencing an evaluating physician.  Your humble blogger is not among them.  Surveillance should be taken often enough, the only trick is to keep a clear record for use in authentication, and to review and use the surveillance tapes swiftly, before they grow stale.   And to clear up any confusion, the surveillance should be of the applicant and not of the evaluating physician.