WCDefenseCA

Hey there readers! Did you miss me?

Well, not unlike Gandalf in The Two Towers, your humble blogger returns to you to be of humble service once more.  Now, you might ask, “HB [which is what the cool kids use to say humble blogger], where have you been these past few weeks?”  Well, I’ll tell you but it’s going to be a “choose your own adventure” sort of explanation, including any of the following scenarios:

1. Jail;
2. Conference circuit;
3. Defending the world against Killer Klowns from outer space;
4. Just really busy;
5. On a 6-week Caribbean cruise lecturing powerful CEOs about California Workers’ Compensation.

Whatever you choose, guess what? You’re absolutely and 100% right!

Anywho, today isn’t just any other day, but it’s actually Columbus day, or, in some cases, sometimes also referred to as Indigenous Peoples Day!  A lot of schools are closed today, and we might be juggling work and childcare since many offices remain open.  However, as my beloved and well-informed readers may recall from prior posts, Columbus Day is not a holiday for purposes of extending deadlines for filing. 

So, if you have anything due today, do NOT rely on it being Columbus Day to extend the deadline until tomorrow. 

If you have the day off, your humble blogger wishes you rest and  recuperation on this day off.  If you’re down in the trenches like your humble blogger, huzzah!

Until next time, dear readers…

Happy Monday dear readers!

Of course, it’s not just Monday, is it?  In fact, it’s Columbus Day in many parts of the country.  However, if we were to look at the Rules of Court holidays, Columbus day is noticeably absent.  Of course, comparing the Court Holidays to years prior, Columbus day was a holiday as late as 2021.

By contrast, California Government Code 6700, lists Columbus Day as a holiday.  Columbus Day was

Typically, whenever any deadline falls on a “holiday” that deadline is extended to the next non-holiday, non-Saturday, non-Sunday.  But what about Columbus day?

Less than a year ago, your humble blogger brought you the panel decision in Vanlandingham v. American Services & Products, Inc., which ruled that since the WCAB was open for filing on Columbus day, the deadline to file was not extended by one day. 

So, what’s the answer, dear readers?  Should Columbus Day extend filing deadlines until Tuesday?  As discussed in this prior blog post, the answer is no.  Government Code section 19853 does not list Columbus Day as one of those holidays where state employees are off work.  Accordingly, if you have anything due today, I suggest you roll up your proverbial sleeves and start working away, as 5pm will be here before you know it and your deadline will be blown!

For those of my beloved readers lucky enough to enjoy today as a day off from work, I urge you to enjoy the wonderful weather and the time spent away from our beloved swamp of workers’ compensation. 

Every lien claimant knowingly providing treatment UR denied, every applicant attorney demanding sanctions because there were only 50 tissues in his client’s tissue box instead of 52, and every shameless defense attorney such as your humble blogger pestering you for authority to take the SJDB Voucher dispute all the way to the California Supreme Court will be waiting for you come Tuesday.  You may as well enjoy the sort-of holiday of Columbus Day while you still can.

Until the next time, dear readers!

Happy Monday, dear readers! Your humble blogger has a short post for you that serves as a cautionary tale for all of us with our eyes on deadlines!

As you may recall, on Columbus day I offered this post, which pointed out that while the California Courts consider Columbus Day a holiday, the state of California does not.  Well, we now have a very recent and fresh panel decision from the WCAB on this very point!  Your humble blogger is trying his best not to be hurt by not being cited as an “authority,” but such is life.

Fun fact, dear readers, did you know that The Big Lebowski is citeable authority, should you for some unimaginable reason need to appeal to the authority of that piece of movie gold?  You can read about it here.  There, dear readers, that’s a thing you know now…

Anywho, the decision is in the case of Vanlandinham v. American Services & Products, Inc.  In that case, the WCJ issued a decision on September 16, 2021, but the petition for reconsideration was not filed until October 12, 2021.  The 25^th day was October 11, 2021, which was Columbus day.  The WCAB then rejected the petition as untimely because “[a]lthough Columbus Day was observed on Monday, October 11, 2021, the Appeals Board was open for filing on that day.”

The attorneys appear to be likely safe from a malpractice claim, as the WCAB also noted “[i]f the petition had been timely, we would have denied it on the merits” but this case is a cautionary tale for all of us down in the trenches of the WCAB.  Columbus Day is being treated as a regular working day for purposes of the WCAB.

But, let’s take it one step further – had this been an appeal filed with the Court of Appeal from an adverse decision on Reconsideration, would it have been timely?  Well, it certainly appears that the filing party would have gotten the extra day under the California Rules of Court.

So, to all those venturing into the workers’ compensation swamp from the sunny lands beyond, your humble blogger can only say “hic sunt dracones”

Happy Monday my beloved readers!

Many of us grew up with today being Columbus Day, and being a holiday to boot.  However, over the years various levels of government have purposed the day as Indigenous Peoples’ Day. 

The California Courts still observe Columbus day as a holiday on Monday, October 11, but California does not. 

So dear readers, as we all know, when the last day to perform an act falls on a holiday, the deadline is extended by one day.  If that last day is today, does the deadline get extended?

Well, I would direct my beloved readers to the panel decision of Bernard v. Chris Johns, DDS, a 2009 decision that a petition for reconsideration was untimely, noting “although Monday, October 12, 2009, was Columbus Day, the WCAB was open for filing” citing Gov. Code 19853, which listed holidays for state employees but did not include Columbus Day. 

Prior panel decision, including Turner v. City of Eureka (2008) and South v. City of Grover Beach (2007) acknowledged Columbus Day as a holiday and extended the deadline to file for the day after Columbus Day.  Of course, Gov. Code section 19853 went into effect in 2009 which might be the reason for the shift.  Despite this, Gov. Code section 6700 still lists Columbus Day as a holiday.

So, despite the Supreme Court setting out rules acknowledging Columbus Day as a holiday, this does not appear to apply to the WCAB and we should all be aware of the same.  Further, practitioners would be well advised to confirm that what appears to be a generally accepted holiday is a holiday for the WCAB in particular to avoid blowing a deadline.  While California stubbornly and irrationally refuses to recognize my birthday as Humble Blogger Day, your humble blogger has to continue to labor even when, by all rights, everyone should be celebrating.

See you on Wednesday dear readers!

Happy Monday, dear readers!  I hope you had a wonderful weekend, and for those of you employed in work places that recognized Columbus Day (or, in some cases, “indigenous people day”), may your weekend continue its enjoyment.

As for us, that neither celebrate that great explorer, nor celebrate the great people he explored, today is another day at work.  So, dear readers, what say you – is this a “holiday” in the sense of workers compensation?

Let’s talk about holidays in general.

Whether something is a “holiday” or not is a very serious question, because it can have very serious consequences for your deadlines: if the last day to do something falls on a holiday, you get an extra day.  (California Rules of Court section 1.10(b) “[u]nless otherwise provided by law, if the last day for the performance of any act that is required by these rules to be performed within a specific period of time falls on a Saturday, Sunday, or other legal holiday, the period is extended to and includes the next day that is not a holiday.”)

Meanwhile, if a holiday falls on a Saturday, it is observed on the previous Friday, while if the holiday falls on a Sunday, it is observed on the following Monday (Rule 1.11).

So, what is a “holiday”?  California Government Code section 6700 provides a list of holidays for California, including: New Year’s Day, Martin Luther King Day, Lincoln Day, President’s Day, Cesar Chavez Day, Memorial Day, Independence Day, Labor Day, Columbus Day (like today), Veterans Day, Christmas Day, and Thanksgiving day.    (See also, Guild v. Bank of America (1999) 64 CCC 175, footnote 2, Unpublished).

Are these holidays applicable to the WCAB?   Well, the California Rules of Court seems to refer to the several section which include Rule 1.10, as “Rules Applicable to All Courts,” so presumably the WCAB would also be bound by this logic.

So, dear readers, those of you planning to celebrate “Greg Grinberg is Awesome Day,” (a festival growing in popularity) or any religious or cultural holidays not recognized by section 6700 of the California Government Code, would do well to note that this does not count as a holiday for deadline purposes.  While it may provide reasonable grounds for obtaining a continuance for a court calendar date, it is not going to get you off the hook for failing to timely file papers.

Happy [second Monday in October] Day!

Hello dear readers!

Your humble blogger bids you a happy Wednesday and hopes that Columbus day saw you enjoying time off rather than scrambling to deny benefits and outwit the vile interpretations of the law that seek to deprive employers of justice and their hard-earned income.

Anywho, I’ve got a good one for you today and it’s about everyone’s favorite topic, Medical Provider Networks.  As well all know, MPNs can be a wonderful tool to provide injured workers with effective care and mitigate costs for defendants.  Employers can craft MPNs with doctors that are determined to see the injured worker treated effectively and returned to productive labor, rather than medicated into numbness and maimed with unnecessary surgery, just to line the pockets of the less-honorable of the applicants’ attorneys and the medical practitioners with more expensive tastes.

The frequent challenge to MPNs has been rooted in a (flawed) interpretation of California Code of Regulations section 9767.5, interpreting subsection (a)(1) to mean that, for an MPN to be valid, a defendant must provide three treating physicians in each specialty within 15 miles of the applicant’s home or workplace.  So if you have 1 chiropractor, 1 physiatrist, and 1 orthopedist within 15 miles of applicant’s home, the theory would go that the MPN is not valid, as you actually need 3 of each.

Well, the recent split panel decision in Luna v. The Home Depot runs contrary to this logic.  Mr. Luna needed an orthopedist to treat his CT, but the MPN only offered 1 orthopedist within 15 miles of his home (even though it boasted 17 within 30 miles of the same).  Applicant argued that the MPN was invalid because defendant’s MPN did not have at least 3 orthopedists within 15 miles of his home to assume the duties of primary treating physician.

The WCJ found for defendant, reasoning that because applicant failed to “produce any evidence indicating that there are not at least three available primary treating physicians within 30 minutes or 15 miles of applicant’s residence or workplace” the MPN is valid.

The WCAB majority agreed – if you want a primary treating physician, the regulations require the defendant to provide you with at least three PTPs of a relevant specialty.  One of each of three different but relevant specialties is sufficient to maintain the validity of the MPN.  By contrast, if applicant wants a specialist, the defendant is entitled to 30 miles or 60 minutes, rather than 15/30.

The string of panel decisions on this topic has been finding the other way, unfortunately, typically invalidating panels if the defense could not provide at least 3 pain management, or 3 chiropractic medicine physicians within 15 miles of the relevant reference point.  But it looks like there is good reason to take this fight up again – the WCAB seems at least to be receptive to this argument.