WCDefenseCA is Moving!

Dearest readers!

Thank you again for your frequent visits and your patience as the wonderful stuff that is this blog invades your e-mail inbox on a daily basis.

Have you often dreamed of living in a world which doesn’t require you to type in such a long web-address to visit this wonderful blog?  Have you always wanted all the exciting action and humbling wisdom of five posts a week to be jam-packed into three?  Are you not-entirely-threatened by relatively-insignificant-change?

Good news!

In the spirit of commercial capitalism, WCDefenseCA.wordpress.org has moved to WCDefenseCA.com!  On top of that, your humble blogger is excited to offer longer posts three times a week.

So…

If you’re reading this and thinking to yourself “WCDefenseCA is pretty good, but I don’t want to waste my precious time going through the 22 second subscription process for a new blog…” this ever-helpful blogger has you covered!  Your e-mail subscription will be automatically and most respectfully transferred and you will receive updates from the new site!

If you’re reading this and thinking to yourself “WCDefenseCA isn’t that great… I’m not going to re-subscribe because the blog was spamming my inbox, and I’m tired of hearing that humble blogger’s charming wit in poking fun at the efforts of noble and selfless applicants’ attorneys and lien claimants” Well too bad!  You should read the blog more often, and as punishment, you’re being subscribed to the new blog as well!  So there.

Anywho – happy Sunday and thanks for sticking with WCDefenseCA (whether you want to or not!)  Part one of a fresh new post will await you on Monday morning!

Something New is in the Works at WCDefenseCA

Dear Readers – thank you for your continued visits.

In appreciation of your patronage, your kind e-mails, and even the angry applicant and lien-claimant messages, WCDefenseCA is working on something very special to be revealed next week… We’ll see you Monday!

Job Abandonment Does NOT Entitle an Employee to Temporary Disability Benefits (Shocker!)

Workers’ compensation is not a catch-all.  It is not meant to correct every ill or misfortune or unpleasant reality of life.  Workers’ compensation is limited to the effects of industrial injuries.

Now that we have that news-flash out of the way, allow me to relate to you, my dear readers, the recently writ denied case of Alemnesh Haile v. Fair Oaks Estates.  Haile worked as a patient caregiver, but then injured her right shoulder.  She was returned to work after her employer was able to find a job for her within her work restrictions.

Unfortunately, Haile’s father fell ill and she purchased a plane ticket to visit him in Ethiopia.  Compounding her misfortunes, her employer did not approve her requested leave of absence for the duration of the trip.  Therefore, on what everyone knew would be her last day, she picked up her final paycheck, and flew to Ethiopia to be with her father.

The evidence seemed incontestable that her loss of employment was solely due to job abandonment, and had she shown up on her next assigned day, she would have still had a job.

At this point, it may be appropriate to repeat: workers’ compensation is not a panacea.

Applicant claimed temporary disability benefits, even though she had abandoned her job and a job within her medically-imposed work restrictions was available before she left.

Well, fortunately, the workers’ compensation Judge, the Workers’ Compensation Appeals Board and the Court of Appeal were little moved by applicant’s claim.  The WCJ rejected applicant’s statement of the rule that “anything less than willful misconduct should not deprive an injured worker of temporary disability benefits,” noting that adopting such a rule “would force the WCAB to (improperly) interfere with legitimate exercise of managerial discretion.”

For more on job abandonment as a shield to temporary disability benefits, see the panel decision in the case of Wilbert Lee v. Coca-Cola Bottling Co. (2009) (“since the applicant refused modified work, and the defendant testified at trial that it offered – and would have continued to offer – modified work within his restrictions, the applicant is not entitled to temporary disability indemnity”).

We’re all sympathetic to applicant, but neither the employer nor its insurer should have to pay for such trips – if you turn down available work, you’re not entitled to temporary disability benefits.

Fraudster Nabbed by Employer (If You Want a Job Done Right…)

WCDefenseCA is happy to report to its dear readers that yet another workers’ compensation fraudster has been caught and is now facing the exhausted and overburdened wrath of local law enforcement.

John Jose Ramirez accepted workers’ compensation payments from a Murrieta, California business after allegedly hurting his knee in 2008.  While the couple who own the small business at which fraudster Ramirez was employed faced increased workers’ compensation rates, he enjoyed disability payments which he used to open his own business, in direct competition with his former employers.

It was only thanks to the diligence of the employer, who regularly photographed Ramirez’s company truck and active lifestyle that the District Attorney’s office was able to make a case.

Currently, the matter is set for a preliminary hearing.

This sets a good example for adjusters and defense attorneys as well.  Whether you are defending a case for the biggest employer in all the land, or the smallest mom-and-pop shop, the best resource for catching fraudsters is the supervisor, employer, and co-worker.

Gossips, rumors, hearsay… all of these things tend to be inadmissible at the Board, but they are enough to justify an investigation, sub rosa, and a line of questioning at a deposition.

The employer has every incentive to have a fraudulent workers’ compensation claim discovered and treated as such, sparing the business budget an unnecessary increase in workers’ compensation insurance premiums.

Even as we on the defense side, attorney and adjuster alike, face crowded desks, bursting filing cabinets, and a clock that is snugly in a vice with every last second being squeezed out of it, there is still good reason to take the time and have a conversation with the employer – What do you know? What do you hear? Is this guy for real?  You think he’s really hurt?  Is he working somewhere else?

As always, WCDefenseCA wishes good hunting to the deputy DA on the case… but an especially fond thumbs up to the small business owners who did the leg work in catching this fraudster in the act.

COLA Set at 3%, So Long as Economy Claims Total Disability

If someone told me that the defendant in a workers’ compensation case was a Jaguar/Landrover dealership, I would expect a pretty awesome story leading up to an injury more to the soul at seeing a beautiful cars damaged rather than any physical impairment.  It should include a high-speed chase, tuxedoes, martinis (shaken, not stirred), and some sort of threat to world peace.  Or, as we in the Bay Area like to call it, “Thursday.”  Well, if your mind works the way that your humble blogger’s does, you’ve got bigger problems than a boring blog post to read.

In the case of Richard Anderson v. Jaguar/Landrover of Ventura, sadly there were none of the things one hopes for.  Instead, applicant sustained an admitted injury to his shoulder while working as a mechanic (no, not while fixing a car mid-air).  Unfortunately, applicant sustained a stroke, leading defendant to offer to stipulate to a total loss of future earning capacity.  However, defendant also argued that at least some of this new Total Permanent Disability should be apportioned to diabetes and other pre-existing factors, as articulated by the panel qualified medical evaluator, who apportioned 40% of applicant’s impairment to non-industrial factors.

The Workers’ Compensation Appeals Board actually rejected the PQMEs apportionment reasoning.  Because the PQME apportioned 40% causation to the cause of the injury, to wit, the stroke, instead of the percentage of impairment, the apportionment opinion was not substantial evidence.  Because no portion of the disability was apportioned to non-industrial or prior industrial causes, applicant was deemed TPD.

The panel then changed to a more interesting question – that of COLA (Cost Of Living Adjustment) and SAWW (State Average Weekly Wages).  Life pensions awarded after January 1, 2003, are to be increased by the same rate as the increase in the state average weekly wage to reflect an increase in the cost of living.  (See Labor Code section 4659(c)).  Well, if applicant was to receive 2/3rd of his income at the time of his injury for the rest of his life, how is applicant’s attorney’s fee to be calculated?

The WCAB recognized that future SAWW increases are not known, and that expecting bountiful years cheats the applicant by giving too much to the attorney; expecting lean years cheats the applicant’s attorney should the years be not as lean as the pessimists expect.  What is one to do in such a situation?

Your humble blogger’s various protests to compelled commutation aside, the WCAB rejected the DEU’s use of the average SAWW increases for the previous 50 years, instead opting to go with a 3% figure to reflect concerns of coming economic troubles.  As the WCAB put it, “a 3% factor places more of the economic risk of hyperinflation upon the attorney, instead of upon the injured worker.”

This does make sense, given the fact that applicant’s award is based on the fact that he will never be able to earn an income again, whereas the attorney is likely able to earn a dollar or two in the years yet to come.

So, if you’re getting ready to settle a case, perhaps it won’t be too unreasonable to push for a 3% COLA increase in calculating applicant’s attorney fees.