WCDefenseCA

Happy Monday, dear readers!  Did you know that sometimes regulations are written with invisible ink? It’s true! Crack open the books and look at Rule 35.5(e)!  If you ask those in the know from the Workers’ Compensation community, that rule is practically invisible.  At least, that was the holding in the WCAB’s en banc decision in Navarro v. City of Montebello (2014) where the WCAB held that when a claim form for a subsequent injury is filed after a QME evaluation for an open claim, the applicant is not required to return to the same QME to address the subsequent injury.What’s the result?  Applicants can remedy their dissatisfaction with a QME’s report by doctor shopping for a second QME by filing an additional claim, typically a cumulative trauma.  This results in increased delays and expense for defendants who bear all litigation and med-legal costs in workers’ compensation matters.  The effect of Navarro and the position that rule 35.5(e) is invalid serves to drive up costs for defendants in this way.The recent panel decision in Sahli v. Nordstrom solidifies this position.  There, defendant petitioned for reconsideration of several findings by the WCJ, among them that the second panel obtained by applicant was valid based on Navarro.  The WCAB denied reconsideration, adopting and incorporating the WCJ’s report on reconsideration.   In that report, the WCJ wrote “Even before Navarro, the appeals board regularly ignored CCR 35.5(e) and allowed the parties, applicants in particular, to obtain new evaluations for different injuries.” Your humble blogger agrees with the WCJ’s opinion as to the status of the law – Navarro allows this process and offers no defenses for employers.  Further, Navarro does not allow the same remedy to employers – if defendants file a CT claim against themselves in the hopes of securing an additional panel, what mechanism exists for forcing applicant to attend such an evaluation?  A petition to bar and suspend benefits under Labor Code section 4053 offers no remedy, as benefits would not be barred nor suspended in the original claim. So, what would your humble blogger wish if he could rub the Legislative genie just the right way?  For the next reform to include a Labor Code section giving teeth to 8 CCR 35.5(e) so that it cannot be so easily ignored.  Applicants should not be entitled to doctor shop by filing new claims and getting new panels, and defendants should not be forced to incur additional costs when they do.  At the very least, in such cases, a petition to bar and suspend should apply to ALL pending claims.  Though a weak remedy for the pain of additional costs, at least this would level the playing field in terms of discovery and developing the medical record. 

What do you think, dear readers?  Is your humble blogger being naïve in wanting a level playing field?  Or is it not too much to ask that we enforce a regulation that’s been on the books since 2009?

Can you feel it, dear readers?  Just around the corner is your humble blogger’s favorite holiday of all – Thanksgiving!  The gentle gobble-gobble of turkeys, the delicious pumpkin pies, the deep, soft sleep enjoyed only by the just except after the Thanksgiving meal, when that slumber is enjoyed by all… it’s wonderful!

Well, before you hop on the literal gravy train let your humble blogger, especially since Chanukah and Christmas are coming up soon, your humble blogger thought he’d share another one of the items on his workers’ compensation wish list.

Since it seems that if we eliminated cumulative traumas in California altogether, roughly half the industry would be without a job, how about something a bit more realistic – CT reform.

The frustrating thing about cumulative traumas is that the standard for a CT is so low, and the deterioration of the human body is so universal, the California CT has become a catch-all.  Is the claim barred by a post-termination defense? That’s fine, just plead it as a CT.  Did applicant not get the QME specialty she wanted?  That’s fine, just plead it as a CT and get a new panel. 

Some applicant attorneys even claim that the companion CT entitles applicant to an additional SJDB voucher, or additional TD for non-overlapping periods.  Absurd, I know, but still allegations to contend with and waste precious defense attorney and WCAB time on.

So how would your humble blogger reform CTs in California, if not eliminating them altogether?  Simple.  Raise the bar on AOE/COE for cumulative trauma claims to match that of psyche claims: predominant cause.

If there is a diagnosis which applicant alleges is industrial, then the burden should be on applicant to prove, by a preponderance of the evidence, that the predominant cause of the cumulative trauma is predominantly caused, that is, more than 50%, by actual events of employment.

Now, I’m sure the applicant attorneys are demanding I turn in my California Bar card and the lien claimants are clutching their pearls and seething at this idea, but the logic is sound and follows the exact same logic as that which guided a raised bar for psyche claims. 

CT claims can be used to retaliate against employers and are, for the most part, maneuvers around statutory defenses. 

They are also so entangled with the normal decline of the human body that they have turned employers and the workers’ compensation system into universal healthcare providers.  Any affliction that affects the human body, if it was in the slightest way accelerated while applicant happened to be working, becomes a CT claim.

In your humble blogger’s estimation, that presents a reasonable compromise between the absurdity that is the cumulative trauma theory now, and the secret desire of every defendant in California to have CTs banned altogether.  

But what about you, dear reader?  What do you think?

Your humble blogger has often thought, dear readers, that if he was given unlimited power and control over California’s workers’ compensation system, there are a lot of changes he would make. 

Bow ties would be mandatory, always and forever.  Judges would be powerless to sanction defense attorneys for doing air quotes when addressing the deponent as “doctor” during a deposition.  5710 fees would be limited to comparable rates for defense attorney hourly fees.

Once the drunk-with-power period faded, however, there are some substantive changes that I would like to see made to the way we navigate our beloved swamp of workers’ compensation.  So, introducing as of today, the humble blogger’s wish-list series!

Today’s wish is a reform of MPN mileage rules to reflect the realities of telemedicine.  Pursuant to 8 CCR 9767.5, one of the requirements for MPN validity is to provide at least 3 physicians ready to serve as PTP within 15 miles or 30 minutes of an applicant’s residence or workplace (or only the workplace, depending on which panel decisions you follow) and 60 minutes or 30 miles for occupational health services and specialists.

What does that mean in a world where a growing number of physician visits are conducted over telemedicine?  If applicant challenges the validity of an MPN based on distance requirements, can the defense realistically offer PTP’s exactly zero miles from applicant’s home because the internet connects to applicant’s living room?

Your humble blogger would revise 9767.5 to offer an exception to the distance requirements, which could be inserted as 9767.5(a)(3) as follows:

Any treating physician equipped and willing to treat a covered employee’s injury or injuries via telemedicine will be considered as having satisfied the access standards set out in subsection (a), above.

Easy, no?

I understand, dear readers, that your humble blogger, when taking up the task of a running wish list, would make such a modest proposal… well… one could be seriously underwhelmed.  However, isn’t this perfectly consistent with the aspirations of a man who dreams of unrestricted power to force everyone to wear bow ties?

Hopefully this will be an ongoing series throughout these blog posts, dear readers.  But if you have any proposals, particularly those that would mitigate the destructive and poisonous effect the current workers’ compensation system has on employers, then your humble blogger is like a corn field right before harvest time: all ears.