Job Title: File Clerk – Duties Include Heavy Construction, Dangerous Physical Labor, and Some Fraud

Every business looks for ways to cut expenses – and workers’ compensation insurance is no exception.  So what’s a better way of saving a few dollars than by reporting your roofers as marketers, your truck drivers as mail clerks, and your construction workers as data entry specialists?

And what do we call such efforts?  Resourcefulness? Creativity? Perhaps even efficiency?  The San Bernardino County District Attorney’s Office calls it fraud, and has charged two business owners with felony insurance fraud because of these very efforts, in what appears to be a case of employer-broker collusion to rip off an insurance company.

Sadly, the complaint is a little light on the details, so we can only imagine what the defendants’ are charged with and just how creative they were in (allegedly) stretching the truth as to what their employees actually did.

WCDefenseCA sends its salute to First Comp Insurance for detecting this possible fraud and making sure a case made its way to the DA’s office.  Most times, it is the insurer or self-insured employer that provides the eyes and ears laying the foundation for a fraud case.

Workers’ Comp Job Restrictions Wins Employee $520k

So what happens when an injured employee returns to work and the employer can no longer accommodate his or her work restrictions?  Well, in some cases, the injured worker files a lawsuit for Americans with Disabilities Act violations.

The Union Tribune of San Diego reports that a jury awarded David Flores $520,000 of San Diego’s money after finding that the city had violated the Americans with Disabilities Act in firing the city employee.   Mr. Flores, while employed as a mechanical inspector, had sustained an industrial injury in 2006, but had returned to work for the city a few months later.  In 2009, his treating physician imposed a restriction against climbing ladders.

The city couldn’t accommodate the restriction, so Mr. Flores was let go.

But then Flores came back with an ADA lawsuit, claiming that San Diego should have still accommodated him despite a medically-imposed work restriction.

Now, bear in mind, your humble blogger is an even humbler Bay Area workers’ compensation defense attorney.  As such, he knows little to nothing of litigating ADA matters.  But what he is learning again and again is that employers just can’t win in California, and this story is no exception to the rule.

New Lien Regulations Sent to WCJs

CORRECTION:  Lien regulations ARE effective now.  Good hunting, everyone!

Welcome back from the long weekend!  As we head to the water-coolers, coffee-machines, and breakfast-conference rooms to swap stories of burgers grilled and items purchased at discount, perhaps there is room to say a word or two about liens as well?

The word around the proverbial workers’ compensation water cooler is that the new lien regulations have been distributed to the workers’ compensation judges (but not yet effective).  Beware, lien claimants, your day is upon you!

If this copy of the proposed regulations is legitimate, the new regulations, if adopted in their entirety, will have the following effects (among others):

1. Lien claims can be dismissed as inactive after 180 days;
2. Liens must have ADJ case numbers if the application has already been filed – so lien claimants will have to do their homework!
3. Lien claimants will be required to appear at lien hearings and be prepared to discuss the case.

Hopefully these regulations will take effect soon and we will have the opportunity to take them out for a spin.  As some southern-California practitioners will tell you, past efforts to deal with the lien problem have met with the fatal mark of “local rules.”  State-wide regulations of this sort are a good step towards solving the problem.

Orange County Moves to Deal with Workers’ Compensation Reserve Deficit

Orange County is known for many things.  The trees grow tall, the sun shines bright, and giant oranges roam the streets eating smaller oranges in vicious acts of orange-on-orange violence.  Well, maybe it’s not known for that, but news in the workers’ compensation world spreads fast that Orange County is facing major problems with its workers’ compensation reserves.  The Voice of OC reports that Orange County is now at 60% reserves of predicted workers’ compensation losses over the next 5 years.

Orange County, of course, is self-insured, and the well looked like it was getting dry in early May.  However, Workers’ Comp Executive reports that the O.C., as the kids call it, is moving to boost workers’ compensation reserves up to 80% by moving $2-3 million from other departments over the next five years.

Your humble blogger offers his salute to Orange County for this approach – instead of raising taxes on other employers under the County’s domain, the County is instead dipping into its own pockets to make up the gap – like any employer or insurer would do to stay afloat.

Perhaps Governor Brown could take a lesson from this modest community of former-orange growers in dealing with the workers’ compensation deficit on the state level.

Gov. Brown Proposes Return to Furloughs

A Flash Report from the Workers’ Compensation Executive, the sister publication of the late, great Appeals Board Reporter, a personal favorite of your humble blogger and a publication deeply missed by the workers’ compensation community, tells us of Governor Brown’s proposal to reduce the budget deficit by reducing the hours of state employees.

Do you remember the furloughs?  Do you remember having a handful of days during the month when the Boards’ doors were [physically] closed to justice and their lights [literally] turned off to the truth (and everything else)?  Perhaps we can expect those days once more.

The proposal includes longer business hours and fewer business days, which doesn’t really help those of us working conventional hours of 9-5.  Even the attorneys and adjusters that actually work longer hours usually reserve the hours before 9 and after 5 to catch up on solo work – reports, paperwork, research, preparing for hearings, and even checking our favorite daily workers’ compensation defense blogs (hint, hint).

What this proposal would provide is a substantial decrease in services (20%) for a tiny decrease in cost (5%).  In other words, the Governor is proposing increasing costs to employers and insurers by 15%

In all fairness to Governor Brown, he was active in vetoing several anti-employer bills and signing several defense (a.k.a. California) friendly bills in 2011.  However, if we overlook the issue of whether the Governor can close portions of the government not funded out of the general budget to “reduce the budget deficit,” your humble blogger submits that, perhaps, the Governor and his administration is taking the wrong tack.

Instead of hobbling the Board offices with a 20% reduction in productivity (let’s be honest here, how productive will you be working 12-hour days when you used to work 8-hour days, especially in those last four hours?) the Governor should be seeking to increase services in workers’ compensation, in quantity AND quality.

With Christine Baker and Rosa Moran enjoying recent confirmation, the efforts should be to make outcomes at the WCAB consistent, predictable, and in accordance with the law.  The various Board venues should be open to provide speedy justice to employees and employers alike – and justice, mind you my dear readers, is not “fairness” or “generosity” with the employers’ capital and the insurers’ reserves.  It is, instead, the correct application of the law without any hooks or crooks.

Instead, with a reduction in services, applicants’ attorney will now be able to threaten the defense community with overworked government employees, delays in closing files, and an overwhelming flood of cases allowing injustice to regularly slip through the growing cracks.  You need a date for that MSC?  Check back in six months.

Come on, Governor, cut the fat, not the muscle, and tighten the guts, not the belt!