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Archive for June, 2012

Court of Appeal Tightens Leash on Labor Code section 4656

Labor Code section 4600 subsection (e)(1) requires that applicants submitting to examination by a physician shall be paid “one day of temporary disability indemnity for each day of wages lost in submitting to the examination.”  Does this trigger the limitation on maximum temporary disability payments under Labor Code section 4656 subsection (c)(1)?  In other words, if an applicant with a date of injury anywhere between April 19, 2004 and December 31, 2007 is examined by a physician, does the defendant employer/insurer’s liability for temporary disability payments evaporate two years hence?

Now, I think there is no doubt in anyone’s mind that your humble blogger would not have said “yes,” but “darn tootin’ heck yes!” (This is a family-friendly blog, after all.  Asked the same question at happy hour, the same conclusion but different language may have been elicited from this verbose blogger.)

Unfortunately, the Court of Appeal for the Third District issued its opinion on the matter before your humble blogger had a chance to share drinks and reasoning with the judges.

In the case of Meeks Building Center v. Workers’ Compensation Appeals Board (Salem Najjar), the Court of Appeal granted defendant’s petition for a writ of review only to affirm the WCAB’s decision, issuing an opinion that dropped the curtain on yet another maneuver that would have benefited the defense in those cases between 4/2004 and 12/2007.

Applicant sustained an injury in 2007 and continued to work without restrictions.  Defendant had applicant evaluated by a qualified medical evaluator and paid him temporary disability for the day of the evaluation.  Applicant continued to work but was determined temporarily disabled and restricted from work in 2009.  Defendant paid applicant TD until two years from the date of the evaluation.

After an expedited hearing, the workers’ compensation Judge found that defendant was in the right – the first temporary disability payment was on the date of the evaluation, and applicant was out of luck (and TD).  Granting applicant’s petition for reconsideration, the WCAB instead found that “the mandated payment for attending a [qualified medical evaluation] exam is not the equivalent of commencing temporary disability payments.”

The reasoning of the Court of Appeal seemed to focus on (1) liberally construing the statutes in favor of granting benefits to the injured worker; and (2) noting that the temporary disability payment owed under section 4600(e)(1) was not related to applicant’s disability or inability to work, thereby making it distinct from those temporary disability payments contemplated by section 4656(c)(1).  The single payment of temporary disability under 4600(e)(1) “is not a temporary disability benefit that triggers the cap under section 4656.  It is a medical-legal benefit intended to permit the injured worker to recover costs associated with resolving a claim.”

In all fairness, the Court has a point – garden-variety temporary disability payments on one hand and the additional benefit of a TD payment while leaving work to visit the evaluating physician are two different animals.

On the other hand, in drafting both sections, the Legislature had at its disposal lawyers, clerks, and well-read and well-educated minions who draft the language that governs our little world of workers’ compensation.  They chose to use the language of temporary disability in both section 4600 and 4656.  In interpreting legislative intent, we do have to give some weight to word choice.  Otherwise, the words “account shall be taken” should not trigger such cases as Almaraz/Guzman, and the straight AMA Guides should control.

Categories: Uncategorized

$225k Double Payment Discovered in Los Angeles Comp

Have you ever gotten a duplicate paycheck?  Or perhaps an invoice paid twice?  What’s the proper protocol when you know someone has made a clerical error and you have ended up with twice as much money as you’re entitled to?

From what your humble blogger can tell based on this article, when the Casa Colina Center for Rehabilitation received a duplicate payment of $225,000, they must have assumed it was a tip from the City of Los Angeles and went on as if nothing had happened.

A recent audit uncovered this and other duplicate payments from the city’s comp program, and now the City Controller, Wendy Greuel, is calling for “greater oversight.”

When we see constant studies showing that workers’ compensation is becoming unsustainable and costs of administration and treatment continue to sky-rocket, this sort of waste is unacceptable.

Rest assured, dear readers, should your humble blogger receive a check for an unearned sum, even $225,000, he would promptly return at least some of it (after a small transaction fee, of course).

Categories: Uncategorized

No Liability for Off-Hours Bathroom Use

In his earlier years, your humble blogger worked as a clerk in his under graduate university bookstore.  Of course, being a student, he on occasion would visit the bookstore even when he was not working there, in an effort to keep up with his studies, he would occasionally drop by before or after his shift to purchase the books he needed for the extremely demanding major of Political Science.  Now, dear readers, had your humble blogger sustained some injury while off the clock but inside the bookstore, should it have been compensable?

As far as this blogger is concerned, of course not!  Although, in all honesty, who knows how a starving college student might have seen things.  It appears that the applicant’s attorney in the case of Paul Gove (Dec’d), Sharon Gove (Widow) v. Miller Coors, LLC, would not agree.

Mr. Gove was scheduled to begin work at 2:30 in the afternoon on October 20, 2009, but appeared in his casual clothes and used the restroom facilities at his place of employ at 12:46p.m. that afternoon.  Co-workers heard a loud bang coming from the restroom, and Mr. Gove was discovered on the floor.  Medical staff was called to assist, but, unfortunately, Mr. Gove passed away roughly a month later.  The cause of death was originally ruled cardiorespiratory arrest and cerebrovascular accident, but was subsequently amended to reflect traumatic subarachnoid hemorrhage.

With an off-duty employee in one hand, and no certain link to industrial activity in the other, the workers’ compensation Judge found that applicant had not carried her burden of proof that her husband had sustained an industrial injury arising out of or in the course of employment.   The Workers’ Compensation Appeals Board and the Court of Appeal had to concur, and they did.

Unfortunately, there is not a lot of authority that comes with this case, as the WCAB denied reconsideration while simply adopting and incorporating the WCJ’s report, and the Court of Appeal merely denied applicant’s petition for a writ of review.

But in any case, it appears that merely being physically within the building where one normally works is not enough to trigger workers’ compensation liability.

And now, a little bit more about my alma mater…

Categories: Uncategorized

CSIA Announces Fall Conference in Oakland

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.

Categories: Uncategorized

Skin Cancer NOT a Progressive and Insidious Disease

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.

Categories: Uncategorized

Short Step and a Long Drop to Continued Higher Wages

June 22, 2012 1 comment

Update: The Court of Appeal denied defendant’s petition for a writ of review.

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.

Categories: Uncategorized

SAWW rises 5.5%; TTD Max $1,066.72 Come 1/1/13

And so the SAWW grows!

An increase in California’s State Average Weekly Wage (SAWW) to $1,059.38 in the 12 months before April 2012 brings glad tidings of higher wages (or fewer jobs) and the unfortunate effect of increased temporary disability payments, as per Labor Code section 4453.  (Much to the surprise of some, this Labor Code section does not actually entitle any worker to a free, state-sponsored saw, but actually has to do with SAWW – state average weekly wage.  But, perhaps, some day?)

The DWC has an announcement that starting January 1, 2013, the temporary disability minimum will be $160 and the maximum will increase to $1,066.72 per week.  Mark your calendars folks!

The glass half full folks will no doubt say that this shows that California workers are faring better and that the economy is improving.  The glass half empty folks will no doubt say this shows there are fewer jobs and the ones that are left are a bit higher-paying than the average was before.

Categories: Temporary Disability