The internet seems obsessed with the pending reforms included in Senate Bill 863, which received yet another amendment (its sixth) just yesterday. Coverage extends to all aspects of the bill, from the hired protestors outside of Senator Kevin de Leon’s office to speculation that Governor Brown is supporting the reform in exchange for some slack from the business community in getting Proposition 30 passed.
And the comments… oh the comments! Every online article is loaded with comment after comment of pure venom, with claims ranging from “the reform bill will prevent attorneys from representing injured workers” to critiques of a subsection which will require the euthanasia of injured workers with a predicted treatment cost over $75.36 (I made that one up, but it wouldn’t surprise me to see a commenter make a claim to that effect).
Your humble blogger is inclined to take a more relaxed approach. If these reforms become law, we can all review them and plan accordingly for the new claims that arise. If the reforms do not become law, then all of this frustration and furious typing away our respective hopes and fears will be for nothing.
While the world focuses on the real life imitating a certain television series, your humble blogger has another story for you, small in its significance but of considerable utility in its duplication.
A small claims court Judge has ordered Michele Marquez, a (former?) Hacienda La Puente Unified School District child-development teacher, to pay $5,000 in restitution to the district. Claiming an injury in September 2010, she was placed on disability leave but was discovered to be working another job by the school district’s investigator.
Bear in mind, dear readers, this occurred in May of 2012, but the internet is a large place, and your humble blogger has only discovered this occurrence now.
California Small Claims Court is available for claims under $5,000 for any entity (not a natural person). And, any number of claims under $2,500 may be filed in a calendar year. Perhaps this is a venue that should be considered by insurers and self-insured employers alike?
After all, temporary disability caps out at just over $1,000 per week, so each claim could possibly reflect each payment made through the applicant’s fraud.
Sometimes the local law enforcement is not interested in pursuing fraudster workers – they are occasionally focused on uninsured employers or, sometimes, violent crime (who would a thunk it?). That doesn’t meant that an employer or insurer can’t attempt to recover their losses through other means. (No, dear readers, this is not an invitation to hire thugs and inflict new impairments on your workers. Let’s stay inside the law, shall we?)
Has anyone out there tried this crazy idea? Has there been any luck enforcing 104 small-claims court judgments for every payment of temporary disability ever made?
In any case, WCDefenseCA sends out a big “Huzzah!” to Hacienda La Puente Unified School District in refusing to eat unreasonable costs in this case. Employers and Insurers state-wide would do well to follow suit.
If you listen closely, dear readers, you will hear the furious typing and exciting writings of the workers’ compensation community, with all the big experts giving their interpretations and predictions for the constantly changing “reforms” of Senate Bill 863. Even as Senator Kevin de León faced the wrath of hired protestors, speculation continued for what the reforms will be when (and if) the bill is signed by Governor Brown.
At the risk of swimming against the stream, allow your humble blogger to report to you another development in the law of workers’ compensation, this one with more binding authority than the wishful thinking of the workers’ compensation community.
We’ve had a few conflicting panel opinions on the issue of Labor Code section 4658(d), among them Hisato Tsuchiya v. County of L.A., which held that the 15% increase/decrease does not apply in cases where the injured worker missed no time; and Wendy Audiss v. City of Rohnert Park, which held that it does.
Now, the Court of Appeal has pronounced judgment, ruling that in cases where the injured worker has not missed any time from work, section 4658d does not apply. The case is City of Sebastopol v. Workers’ Compensation Appeals Board. Defendant-employer made an offer of regular work less than sixty days after applicant William Braga was declared permanent and stationary, even though Braga had lost no time from work and was happily at his task even after filing his claim for hearing loss.
Naturally, the City took a 15% decrease in permanent disability payments, and, surprisingly, applicant was perfectly agreeable to this – all parties just wanted their compromise and release agreement approved. But the workers’ compensation Judge rejected the settlement agreement, reasoning that the 15% decrease does not apply in cases where the applicant missed no time from work.
Unfortunately, the Court of Appeal has agreed.
Now, bear in mind, dear readers, that a good portion of the workers’ compensation community finds this a good decision, but your humble blogger does not count himself among them. Through diligent adjusting efforts, employers who found workers with no missed time following an injury enjoyed a benefit in the form of a 15% decrease in permanent disability indemnity. And this made sense – if the injury is so minor that a worker did not miss any time, then the PD really should be decreased.
Now, however, that benefit is no longer available to the employers and insurers, and the best adjusters have one less way to distinguish themselves.
I have some great news for those of us who keep our calendars handy and our fingers nimbly extended for the purpose of counting.
So you’ve received your panel of QMEs, and, as usual, the panel is stacked 2-1 with employer-hating, insurer-despising, pill-happy, surgery-generous, Almaraz-Guzmaning “qualified” medical evaluators. Applicant’s counsel quickly strikes the one good QME and you’re stuck with choosing between bad and worse.
Then, of course, Christmas comes early! The PQME misses his deadline of providing a supplemental report within 60 days of the request, as required by California Code of Regulations section 38(h). So, naturally, you make your objection to the PQME, providing a copy to opposing counsel, and submit a request to the Medical Director for a new panel, or at least a replacement QME on the same panel.
But the report came in eventually, and applicant wants to proceed on the report. What result?
Perhaps your recall an earlier post in which an applicant objected to a late report, knocking the PQME out of the running and obtaining a replacement. But that was an applicant invoking the rules and wanting to play it by the book – can a defendant pull off the same crazy stunt? Is it at all possible that what is good for the workers’ compensation goose is also good for the workers’ compensation gander?
(In case you’re wondering, that’s about what a day at the Board looks and sounds like)
Submitted for your approval, dear readers, the panel case of Aida Lopez v. C&S Wholesale Groceries, in which the Workers’ Compensation Appeals Board denied applicant’s petition for removal form a workers’ compensation Judge’s order to have the medical director issue a replacement QME or a replacement panel.
The WCJ found that a supplemental report was requested, 60 days had passed, defendant objected and requested a replacement panel, the report came in, applicant wanted to proceed based on the supplemental report.
The Court of Appeal wasn’t too impressed with applicant’s position either, and denied her petition for a writ of review.
Here’s a thought – if you want to keep the QME, and the deadline is coming up, then perhaps you ought to write a letter explaining the deadline and the need for the report. QMEs don’t become QMEs to get disqualified and would probably welcome the reminder.
Your humble blogger has gotten his hands on a copy of a draft of proposed reforms, this time as part of the possible legislation.
There is a lot to get through, folks, a lot to comprehend and a lot to imagine as it would be applied. But on an initial reaction, this chronically cynical and typically pessimistic defense lawyer is feeling cautiously optimistic. It appears that some of the proposed reforms are meant to address specific instances of insanity in the workers’ compensation system (Alvaraz, I’m looking at you!) In fact, if the reforms go through un-mutilated, the new Labor Code section 4062.3, subsection (f) would specifically exclude “nonsubstantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report” from the presently all-embracing scope of “ex parte communication.”
Another wonderful reform is found in (hopefully) the future Labor Code section 4064, subsection (c), which would allow employers to file applications on behalf of unrepresented employees in order to grant the WCAB jurisdiction. The reformed subsection would eliminate the liability for applicants’ attorney’s fees for the entire case, and limit it to any attorney fees related to a filed declaration of readiness to proceed.
There’s plenty to look forward to, but as the old Russian saying goes: “May we have everything, and not have to take anything for it.” Your humble blogger will keep you posted!
The Medical Specialty of a Qualified Medical Evaluator Panel. Parties often live and die by the specialty. Defendants pull for orthopedists and applicants pull for chiropractors, and in almost every case involving a medical dispute, swords are drawn, muskets are primed, and blood is shed over which panel specialty should be controlling. Dear readers, by blood, I of course mean money in the form of litigation dollars – but for every business, and every business is to this humble blogger of some concern, blood is green and comes in paper form.
And let it be known to every workers’ compensation Judge in the land, parties will not hesitate to take the matter to trial, or even before the Workers’ Compensation Appeals Board if necessary. Such was the case in Paula Lecocq v. Associated Feed & Supply Company. There, the parties had a dispute over which panel specialty controlled (neurology or orthopedic surgery). However, the WCJ made a decision and entered a Finding and Order at the Mandatory Settlement Conference, overruling defendant’s request for a trial on the issue.
If anyone had any thoughts about the matter being resolved by simply denying a trial, the Workers’ Compensation Appeals Board managed to turn things around in a very simple and straightforward opinion. Granting defendant’s petition for removal, the WCAB held that WCAB Rule 10353(a) “[the WCJ] shall not hear sworn testimony at any conference.” Therefore, because there was no agreement of the parties and no record upon which a decision could be based, the WCJ must allow a trial on the issue.
So the defendant will have his day in court, and will have a decision to seek removal of if it comes to that.
Now, imagine if you can, dear readers, the (green) blood that was shed in resolving this issue. Even for some biased and inconsiderate people who giggle gleefully at the thought of employers and insurers having to waste money to litigate an issue, the time of the WCJ, the WCAB commissioners, and all the support staff and clerks was wasted on this dispute. And it will be wasted again and again in this case (for a trial and an appeal) and in every single cases in the EAMS system.
The panel specialty is important and can determine a lot about a case – this is evidenced by the fact that both applicants’ attorneys and defense attorneys are willing to put in the time to fight about it. IT IS IMPORTANT!
Often enough, on this blog and in the considerably less family-friendly environment of this attorney’s thoughts, your humble blogger has mused about the fact that there should be a rule that, if given enforcement consistently and uniformly, would put to rest this needless litigation and its senseless expense.
If only a rule existed that required the treating physician’s specialty to be controlling of the panel specialty.
Perhaps the pending reforms will bring us just such a delivery!
A work-related injury takes its toll in many ways. It takes its toll on the worker, who might have to live with permanent impairment and possibly even a change in career. It hurts the employer by depriving it of a (formerly) productive employee, increasing its insurance rates, and requiring it to walk the thin line between unreasonable losses due to a work vacancy, or risk sanctions and lawsuits for a pantheon of broken laws.
But, really, the work-place injury hurts an often silent party – the worker’s family. Although death benefits are available in fatal injury cases, the same benefits for a Sunday afternoon car accident on the way to the grocery store aren’t available for a Tuesday morning collision while delivering bread to the same supermarket.
Loss of consortium is that claim that family members make for loss of society – for being deprived of the benefit of a healthy and uninjured family member. This ranges from basic family events such as picnics, baseball games, and dinners together, to interference of the more private relations between husband and wife. Can an injured worker’s spouse sue the worker’s employer and/or insurer for loss of consortium?
No. Not no, but heck no, according to the California Supreme Court, which recently issued a published opinion on this very issue. In the case of LeFiell Manufacturing Co. v. Superior Court of Los Angeles, SCOC (that’s Supreme Court of California), the Supreme Court ruled in favor of the employer, reversing the Court of Appeal and instead ruling that loss of consortium is not an available benefit resulting from an industrial injury.
An injured worker filed a claim under the “power press exception” to the exclusivity of workers’ compensation, alleging the necessary elements. An additional claim was stated as loss of consortium for the employee’s wife, who joined as plaintiff in her own right, alleging that “she had been deprived of [the injured worker’s] services in the care and management of their home and family, and of his ‘necessary duties as a husband’.” The Court of Appeal and the Supreme Court expressly rejected that claim on procedural grounds – it could not proceed and nothing could be claimed from it.
The Court reasoned that “where, as here, the worker’s power press injuries do not prove fatal, the Legislature has expressly restricted standing to bring the action … to the injured worker alone.” (Emphasis in original.)
Now, bear in mind, dear readers, it is not with a smile or with any pride that your humble blogger writes this, but it appears that a piece is missing from the jigsaw puzzle. The state has regulated the relationship between the employee and the worker in cases of industrial injury, providing some sort of compensation for losses due to injury. But the employee’s spouse and family members are not in this relationship – they are being deprived of a benefit (a healthy family member) without any recompense.
Although the workers’ compensation system provides a trade-off of faster available benefits with a lower burden on the moving party (the worker), it provides nothing for the family members of the injured worker. After all, we all have responsibilities at home – when we’re not on the clock, we are painting walls, changing the oil, cooking, cleaning, gardening, and/or raising kids. Our families reasonably expect our participation in the “care and management” of our homes.
Sometimes, medical care in the form of in-home care, including cooking, cleaning, lawn care, and nursing services, can be provided as “reasonable medical treatment” for the injury. But can anyone be hired to discharge the ‘necessary duties as a husband’? Before you rush to the comments section to post your suggestion, please remember that this is a family-friendly blog!
Far be it from your humble blogger, heartless lawyer that he is, to ever argue in favor of increasing liability for the employers, who have enough costs and burdens to deal with in California as it is. But something about this decision does not sit right with this attorney’s crooked sense of conscience.
The California Workers’ Compensation Insurance Rating Bureau is set to recommend a 12.6% increase in workers’ compensation insurance premiums for new and renewing policies as of 2013, raising the average rate from $2.38 per $100 in payroll to $2.68. For context, Arizona’s rate in 2010 was $1.71 per $100 in payroll.
The Insurance Commissioner is often bemoaning the “underground economy” and does not miss many opportunities to champion the arrest, prosecution, and, ultimately, the destruction of the businesses that find it simply unaffordable to purchase workers’ compensation insurance. How can a small business, barely making any money, continue to make payments in the face of increasing insurance costs?
Often enough, small business owners have barely any money to pay themselves, let alone their employees. More insurance increases means (1) fewer jobs; (2) fewer businesses in California; and (3) more business driven into the underground economy, costing California tax revenue and bloating the budget necessary for investigation, prosecution, and enforcement.
At the same time, this is a clear indicator that workers’ compensation expense is going up, even as participants see a decrease in services — workers’ compensation Judges are being overwhelmed with demands on their time, lien claimants are swarming like locusts, and the Medical Unit has so many requests that it fails to follow its own rules in issuing panels. Perhaps reforms are needed now, and lots of them!
As a classmate of your humble blogger once told his fellow visitor to the drunk tank, there on his third DUI, “it doesn’t look good.”