Friday, September 4, 2015

Back To Health

While a committee of the International Association of Industrial Accident Boards and Commissions is about to finalize a paper (due out at the end of this year) it is preparing to educate the workers’ compensation industry about return to work, I think the philosophy adopted by United Airlines under their Corporate Director for Safety, Joan Vincenz, may be a better, less contentious, and less risky, approach.

Study after study shows that people need work. It provides purpose, routine, accomplishment. It is necessary for physical and mental health. People who work are, overall, happier and healthier, and live longer, more fulfilling lives.

The objection to a return to work philosophy, though is that there is potential for abuse. Workers may be returned to light duty, but end up doing work that is beyond their physical abilities at the time. There may be opportunity to fudge status or pressure to expedite the process.

It comes down to communication, and enforcement. Clear communication about a worker's abilities needs to be transmitted and understood to everyone, and there needs to be a method of ensuring that any restrictions are clearly observed.

Both are difficult to achieve in any environment.

Some states have tried engaging the employer and employee in the process with incentives. Mostly, I don't believe these work, because the incentives are one sided - to the employer (or insurance company).

California's incentive system failed miserably, in my opinion. This attempt tried to provide a benefit to the employer (mostly insurance carrier) by decreasing the permanent disability indemnity award if the worker was brought back (and imagine the worker's chagrin that he gets cheated out of a benefit for going back to work...).

The flip side of the California equation was that the indemnity award would be increased if there was no offer of return to work. Obviously this process generated misguided, and lopsided, policies.

Oregon's policy is to reimburse the employer for half of the wages for 66 days of light or transitional work. Again, the incentive is lopsided. Workers might benefit from return to work, but sometimes there needs to be a better reason.

My panelist in the Conversations session at the IAIABC convention, Vicenze told the audience that United Airlines has a "return to health" policy.

The idea is that sometimes an employee is not going to come back to the job. Sometimes the injury was too severe, sometimes there are other factors inhibiting return to the job.

But the universal goal is to get the injured worker back to as good of health as is possible - one can not go back to work unless one is healthy. If one is healthy then getting back to work is the next step and generally not a big step.

But without health, there can't be that second step.

Which makes a lot of sense to me. And Vincenze says her company has seen great success with that philosophy.

It's a slightly different mindset, slightly different approach, slightly different dialogue, a finessed detail.

Often, though, success is in the details.

Thursday, September 3, 2015

Coordinated Medical

One of my duties at the International Association of Industrial Boards and Commissions 101st Convention in Chicago yesterday was to participate in a fast paced Ignite! session.

One of those short presentations caught my interest - Jeremy Jackson of the Ohio Bureau of Workers' Compensation briefed a pilot program the agency is testing to see if they can keep folks from getting "lost in the system."

They surveyed stakeholders and found that there was a big disconnect in medical care; that it wasn't okay for the physician tasked with industrial treatment to be the front person, that while we try to hold that person accountable for results there was no feedback to the worker's regular doctor or the community itself.

But they wanted to effectuate a change in culture without having to go through legal or regulatory changes.

So, with a test bed of about 30 shoulder injury cases the bureau set out to coordinate care between the industrial doctor and the general MD, who may be following the patient for other conditions that may, or may not, affect the industrial condition.

The purpose was to return to the injured worker and his physicians a sense of control. In the workers' compensation world the injured worker, generally, does not have much control over medical care. He or she is told by some doctor that they were referred to by an attorney or insurance company to accept treatment where there is, on the front end, very little trust, very little communication, and certainly not much of a relationship.

But a lot of people have health insurance or use Medicaid, and a primary care physician that is generally trusted, with whom there is a good relationship.

The Ohio test is to see if that trust gap can be bridged.

So when a claim is accepted as industrial the bureau coordinates communications between the industrial doctor and the general physician so they are talking and treating the whole person, rather than just piece-meal stages.

One of the obstacles that they have found is that there may be a time lag between claim initiation and the determination for coordination because of the need to get medical records to everyone - I'm sure that eventually this can be solved with some technology, particularly as electronic health records become more standard.

And of course the one big advantage that Ohio has that most states don't is that it is a monopolistic system, so all of the control resides within a single entity - as opposed to an open market system where hundreds of insurance companies may require coordination.

It's likely that I'm missing some details. The program just started in July, so elements are still being worked out.

Nevertheless, Ohio is going to regularly publish the results of this experiment, and I'm excited that there is some fresh thinking in terms of at least attempting to deal with the whole person to the extent that the law allows.


In the meantime there appears to be an Illinois scandal brewing - arbitrators that had, or have, workers' compensation claims against the state don't get invited back.

WorkCompCentral reported the trend this morning, documenting each arbitrator that was still serving and who had or still has a claim do not get reappointments.

That pretty much sends a message...

Wednesday, September 2, 2015


You likely already know that a group of California Uber drivers has succeeded in having a class certified to bring suit on behalf of Uber drivers in the state for tips and expenses.

While Uber has publicly stated that it intends to appeal (wouldn't you like to be an Uber attorney right now!) this ruling is significant because very, very few class action lawsuits actually get to trial. The time and expense of a class action lawsuit brings even the biggest companies to their knees.

Their lawsuit sought class certification on behalf of 160,000 drivers who have worked for the company in California since 2009. This can be a sizable claim...

Uber has been making the same arguments over and over in different courts, and is finding that, with very few exceptions (particularly in a more labor friendly state such as California) it's model of "independent contractor" is erroneous.

Arguing against class certification, Uber tried to demonstrate that the drivers do not share commonality. This failed.
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United States District Judge Edward Chen wrote in O'Connor vs. Uber:

"First, to the extent that Uber’s "no typical Uber driver" contention is focused on legally relevant differences between drivers under the Borello test (e.g., whether or not they operate a distinct transportation business), the argument is really a commonality or predominance argument masquerading as a typicality argument: If legally material differences between class members are so substantial that the predominance or commonality tests cannot be satisfied, then the typicality test likely cannot be satisfied either. As discussed below, however, the Court finds that the predominance test is satisfied with respect to the specific class defined above because there are not significant material legal differences between the claims and defenses of the class members and those of the named Plaintiffs."

Uber also tried to convince the court that its drivers really want to be independent contractors based on its survey of about 400 drivers - but the company failed to follow statistically sound methodology and the court called them out on that:

"[N]ot only are the expressed views of these 400 drivers a statistically insignificant sample of the views of their fellow drivers and class members, there is nothing to suggest (and Uber does not contend) that these 400 drivers were randomly selected and constitute a representative sample of the driver population. Nor is there evidence that the responses of these drivers were free from the taint of biased questions. Nothing suggests, for instance, that they were told that were the Plaintiffs to prevail, they might be entitled to thousands of dollars."

Chen also took the company to task for trying to hoodwink him:

"[O]n one hand Uber argues that it has properly classified every single driver as an independent contractor; on the other, Uber argues that individual issues with respect to each driver’s “unique” relationship with Uber so predominate that this Court (unlike, apparently, Uber itself) cannot make a classwide determination of its drivers’ proper job classification."

Though Chen certified the class, he excluded some drivers and limited it to the drivers' claims for tips, not expenses.

Still, this is a very significant ruling that should alert Uber that its model, at least in California, may have to change.

My prediction is that Uber will be the ultimate sharing economy company, because it's going to have to share a lot of its capital with its drivers...

I also predict that the awesome technology that Uber brought to market will actually be successfully adopted by more traditional transportation companies, that eventually there will be "dependent contractor" status as a legal class, and that Uber will shrink away to insignificance after having blazed the trail for others.

Perhaps the company is already realizing this. In its arguments in the case the company describes itself now as providing “lead generation.”

Yes, the company is leading a generation to the realization that, at least presently, there are only two classifications of workers: employees and independent contractor; and that those legal principles have been in place, and have been tested, for many, many years.

Tuesday, September 1, 2015

More Finger Looking

Yesterday I groused about the dog looking at the finger, rather than the moon... Today I head to Chicago to moderate a panel interview at the 101st Convention of the International Association of Industrial Accidents Boards and Commissions.

My panel, Conversations About the Grand Bargain, is about whether workers' compensation fulfills its essential duties in the modern era.

And that brings me back to yesterday's topic - neuropsychologists being eliminated as a specialty from the California Qualified Medical Examiner selection process. Pending before the legislature with nearly unanimous passage through the process is AB 1542, which would statutorily keep neuropsychology an option in the QME process.

The bill was filed after it was announced by DIR that the specialty would be eliminated.

The position of the Department of Industrial Relations is that the category was a mistake 20 years ago and should never have been an option, was missed when the process was visited several years ago, and now that the QME selection process is being automated, which requires regulatory action to implement, it's a good opportunity to clean this up.

According to DIR, neuropsychology isn't recognized by a California medical board, namely the California Psychology Board, so it doesn't meet DIR criteria.

But, the CPB defers to the national board for specialization, and neuropsychology is so recognized, and in fact was the first specialty in psychology to achieve that status.

In fact, neuropsychology is endorsed by the American Academy of Neurology as not only a viable specialty for the evaluation of cognition in brain injury cases, but one of the only specialties for such.

There's more to the neuropsychology and Qualified Medical Examiner issue going on than I gave credit for.

There are some other issues that go beyond the rather minor issue of having a sub-specialty that is nationally recognized (but not by a California specific medical board) as a selection for QME work.

One of the most compelling that was presented to me is that failure to do so may actually increase litigation. The argument goes that an injured worker might see a lawyer hoping to be able to obtain a neuropsychologist evaluator through the AME process.

If the defense doesn't agree, then that doesn't work, but the worker would have already hired an attorney and we know from numerous studies that litigated cases with attorney involvement are responsible for a disproportionately higher level of costs to employers.

So, possibly, the abolition of QME neuropsychologists may actually drive up employers costs.

I suppose an argument could be made that failing to eliminate neuropsychology from the QME selection options would invite other sub-specialties to argue inclusion - but this hasn't happened in 20 years, so why now? Other than the fact that some new regulations are being written, there doesn't seem to be any compelling argument that there's been any change in circumstances to make this change NOW.

We know that the California Applicants' Attorneys Association has developed a legal strategy that promotes pain as a brain injury and thus allowing for psychiatric dysfunction to come back in as a physical injury using AMA Guides Chapter 13. Could it be that the DWC is preventing an onslaught of QME neuropsychology claims? Seems farfetched, but...

I suppose the psychology or physician QME could insist on a neuropsychological evaluation to complete a P&S report, but this is mitigated by Regulation 32 and Regulation 31.7 which, combined, prohibit getting these types of consults. The QME in such a case is to ask the DWC Medical Unit to appoint a random panel in the requested specialty to prepare a new comprehensive medical-legal evaluation.  Since the DWC will not longer track neuropsychologists, the Medical Unit could only select a random panel of QME psychologists and hope that at least one of them is a neuropsychologist. 

Given the current "mix" of psychologists and neuropsychologists available for QME consultation, there is only a 15.4% chance of one neuropsychologist being on the new panel and only a 0.4% chance of there being three neuropsychologists on the new panel; a Catch-22.

Yesterday I essentially aired that this whole debate is the dog looking at the finger, rather than the moon the finger is pointing at - and yes, that's exactly what is going on. Whether neuropsychology is an appropriate specialty for QME panel selection is a relatively small detail in the grand scheme of things, but I keep going back to "workers' compensation."

"Workers'" - plural possessive. It's not about employers, insurance companies or the government. This system is supposed to serve "compensation" to workers who are injured on the job, even those who sustain some sort of brain injury that requires astute and accurate assessment from a specialist whose training is particular to that condition.

So what's happened to the Grand Bargain? My guess is that the panel will say just that: we forgot that "workers'" is plural possessive.

Leave neuropsychology as a QME panel option so that "workers'" can get their just "compensation."

Monday, August 31, 2015

Neuropsychology and QMEs

I think my first real experience with traumatic brain injury was when I was about 8 years old. My younger brother and I were having a rock fight because that's what we did when the parents kicked us out of the house (which was all the time). My brother was across the street - a good 30 to 40 feet away. Neither of us ever figured we would actually hit each other... I had just finished my shot when, "WHAM," I took a stone right between the eyes. Lots of stars. Little bastard...

But my experience with TBI didn't stop there, because I was an "active child" (okay, hyperactive, but at least my parents didn't put me on Ritalin, like my brother).

I was around 12 years old when, racing bicycles around my friend's yard, I lost traction around a corner and slammed my head against the asphalt. I was wearing a "helmet" but back then it was just a stupid piece of plastic with no polystyrene lining that didn't provide any force absorption. My glasses broke and I got an "asphalt tattoo" in the side of my face that I still sport. My head went "ding, ding, ding."

There were a couple more minor episodes of head trauma as I grew up but nothing notable, until law school.

During my first year in law school I had taken a bicycle ride from our rental in Trancas Canyon to Venice Beach. Along the way, in the big parking lot adjacent to Santa Monica Beach, I was pulling an epic wheelie on my highly modified, race ready, cruiser bike. My feet were strapped into the pedals, and of course I wore no helmet. I carried that wheelie for hundreds of yards, then over-spun and failed to feather the back brake in time, and looped it. WHAM! That one hurt, right on the back of the head.

That incident happened about 8:30 a.m. The next thing I remember (amnesia took away most of that day, though some memory of it did return) it was about 4 p.m., I was sitting on my bike in that same parking lot and my head hurt. I felt the back of my head with my hand and it was bloody. "Hmmm," I thought to myself, "this isn't good." I figured I'd better call home for someone to pick me up.

I pedaled over to the closest pay phone, and dialed, and dialed and dialed and dialed... I couldn't remember my phone number! I couldn't remember the names of my roommates to get directory assistance. I panicked. I just started punching the keypad hoping some pattern would emerge that would get me connected. Fortunately that worked, my roommate Lydia panicked as well, told me to stay put, and she got me an hour later and took me to the hospital for a couple of days in ICU.

Later that same first year of law school I was surfing Zuma Beach before class - it was going off! Big, deep, shore-break tubes with perfect shape. Spicoli had nothing on me! I slipped into a barrel, and the curtains came down - next thing I know I'm spitting sand out, my board had a huge, head-shaped ding in it, and my ears were ringing like I was a General Telephone appliance.

I sat on the beach for quite a while after that because I couldn't focus, and my head really hurt. I remembered I had class: Contracts with Professor Keyes, who was nearly identical in looks and demeanor as John Houseman's character in Paper Chase. I was late! Don't ever, ever be late to Keyes' class!!! I raced to school, and in retrospect I shouldn't have been racing anywhere, let alone driving.

Class had been in session a good 10 minutes before I walked into the classroom, and when I did all 200 pairs of eyes in the lecture hall, including Professor Keyes, were on me. Gulp... Miraculously, although the entire class halted, Keyes didn't call on, or otherwise embarrass me. I found my seat, next to my good buddy and eventual roommate, ET. He was laughing at me when I said, "Dude, take notes for me. I'm all F'd up..." But ET wouldn't stop laughing.

"What's so funny dude?" Turns out not only did I have sand all over my face and head still, but I even had seaweed hanging off my head.

There's plenty more head injury stories where those came from, unfortunately, or fortunately, if someone wants to talk to me about TBI because I have a lot of personal experience!

One of the very few medical specialties that knows how TBI works and affects people is neuropsychology - the interaction of brain malfunction on cognition and behavior - it is the only specialty that knows how to objectively assess for cognitive impairment.

There is controversy over whether neuropsychologists should be available as a separate sub-specialty in the California Qualified Medical Examiner selection process. The Division of Workers' Compensation is removing the specialty as a separate Qualified Medical Examiner selection choice, but there is a bill pending in the legislature (AB 1542, Mathis, R-Visalia), that has passed virtually unanimously through the process, that would ensure neuropsychologists would remain available as a QME choice.

For more than 20 years, injured workers and their attorneys have been able to designate the neuropsychology specialty when requesting a QME panel. But that changes tomorrow, Sept. 1, under rules the Division of Workers' Compensation adopted on Aug. 12.

The regulations merge neuropsychology with psychology. Neuropsychologists will still be available as agreed medical evaluators, and they will be allowed to serve as QMEs, but getting a panel of neuropsychologists will be by sheer chance because they will not be separately designated.

The DWC said in its Initial Statement of Reasons published in March, when it introduced the proposed rule changes, that it was eliminating the designation because the Medical Board of California does not recognize clinical neuropsychology as a specialty.

The DWC announced its intent to adopt those rules on July 21, after AB 1542 was already passed unanimously by two committees in the Assembly as well as the full Assembly itself. The Assembly voted 79-0 to pass AB 1542 on July 16. There is no indication in any bill analyses that the DIR was opposed to the bill at that time.

But five days later, the DWC said it would adopt the rules eliminating the neuropsychology designation despite the pending bill.

And a week after that, DIR Director Christine Baker wrote a letter to Assemblyman Devon Mathis, R-Visalia, that the administration was opposed to the bill he co-authored with Assemblyman Ken Cooley, D-Rancho Cordova because the administration is concerned "the California Board of Psychology does not recognize neuropsychology as a subspecialty in psychology."

However, the California Board of Psychology defers specialty recognitions to the American Psychological Association, a national organization that certifies neuropsychology specialists. As a matter of fact, Neuropsychology was the first specialty to be individually and formally recognized by the American Psychological Association.

There is also an umbrella board certification group, the American Board of Professional Psychology, that recognizes neuropsychology as a unique specialty.

And, while plenty of other specialties could involve expertise, neuropsychology is the only area of expertise which allows for the objective assessment of cognitive impairment, according to folks I know in the field.

Noting the curious timing of the regulatory change, and the apparent attempt to have regulation trump legislation, Mathis wrote to Thomas Dyer, chief deputy legislative secretary in the governor's office, that, "It is immaterial that the AD may currently have a different policy."

Mathis points out in his letter that the Legislature has the power to create a workers' compensation system and workers' compensation policies, and that the administrative director can only adopt rules and regulations consistent with the policies set forth by lawmakers.

By the way, Mathis received the Purple Heart for a traumatic brain injury he sustained in 2008 while serving as part of a U.S. Army transportation unit in Iraq that was targeted by insurgents.

So I asked Christine Baker, Director of the Department of Industrial Relations, which oversees the DWC, what's up: Neuropsychology has been an option for 20 years, so why now? And what was the urgency in moving up the implementation date of the regulatory change from October to September? What's the big deal about amending DWC policy to provide for a nationally recognized accreditation rather than eliminate a choice?

Baker wanted to put the current controversy into historical context, indicating that any timing relative to AB 1542 was coincidental.

Baker explained that before her time as Director, in 2009, the overall QME regulatory process was reviewed and the DWC decided that it would be best to only authorize for QMEs specialties that were recognized by California medical boards. This was when chiropractic was, frankly, running amok in California. Consequently a large number of subspecialties not recognized by state boards were eliminated.

Baker said that neuropsychology was left in by error.

Then in April 2015, the division moved to automate the QME panel process. Since this is a state agency that move required regulatory action to implement. Consequently, the division decided to clean up the QME process to make it consistent with existing policy, which meant removing neuropsychology as a subspecialty.

Baker said it was at that point that parties interested in the issue went to the legislature.

In response to my question about limiting access to examiners who were particularly qualified to deal with TBI and other cognitive challenging injuries and disabilities, Baker said she thinks that in fact the move will provide better access to the public for the right kind of doctor; if we went by the legislative recommendation then only 6 QMEs would be qualified by the American Medical Association, and only 12 by other boards, for a total of only 18 QMEs total, as compared to 157 QME psychologists in total.

And if the California Board of Psychology wants to recognize neuropsychology as a specialty, then that would be a different matter.

Baker also argued that the treating doctor or a panel QME can request neuropsychology testing and interpretation when necessary so there should be no issue in making determinations on cognitive impairment; the parties need to ensure that the evaluating QME makes the request for testing when appropriate.

And, or course, nothing prohibits going to a neuropsychological Agreed Medical Examiner.

According to the analysis prepared for the Assembly Appropriations Committee, any costs related to the bill would be minor and absorbable. The Senate Appropriations Committee did not prepare an analysis of the measure.

So where do I stand? What do I make of this controversy?

At first I thought that maybe some powerful interest groups were trying to limit exposure to TBI disability claims, like perhaps the NFL. I think my imagination, however, was out of control; clearly that conspiracy theory doesn't play out well.

Maybe the numerous TBIs that I've experienced have denigrated my cognitive capacities. That is certainly a plausible theory, because after hearing all the arguments, reading the bill text, understanding the positions, I still don't get it ...

Frankly, I don't think it matters one hoot whether, or not, neuropsychology is an option in the QME panel selection process. It would be nice to get the right doctor at the right time for the right person and reason - but that's a crap shoot anyhow in the present system with or without sub-specialties.

In truth, this whole affair is looking at the finger that is pointing at the moon, rather than at the moon itself. We have a bigger mission to accomplish.


The APA formally recognized the specialty of neuropsychology, but they do not certify specialists in neuropsychology or any other specialty.

Friday, August 28, 2015

Beacon on Disparity

A recurring theme at the 70 Annual WCI Educational Conference in Orlando, FL this week was the media attacks on workers' compensation.

General media has taken an interest in work comp. We've seen stories and anecdotes highlighting the bad this industry does to people in the Los Angeles Times, Baltimore Sun, Texas Tribune, New York Times, and many more.

The media rush came to a head earlier this year with the blistering series published by ProPublica.

The ProPublica series was principally about the disparity of treatments from one state to the next, highlighting the irrationality that one body part is "worth" so much in one state, and a very different amount in another.

The series showed that there was no uniformity, nor logic, to many of the state differences; why an indemnity rate may be so much more or less than a neighboring state, why there are wildly disparate waiting periods or statutes of limitations, why some injuries are covered in one jurisdiction and not another, even whether coverage is mandatory for certain occupations in certain states with certain employers...

There's no doubt that workers' compensation through the years has, as a consequence of its state by state implementation, been painted as failing to generate any predictable, stable medical and financial back stop for injured workers.

And that makes great stories, frankly. While people don't like to read about bad things, there's a human characteristic that is entertained by the odd, unusual, frightening, emotional illogic depicted in these stories.

There's a media funding foundation, Beacon, which operates on crowdfunding sources to provide finances to journalist interested in covering topics that the organization finds appealing. Beacon has partnered with ProPublica to fund further stories on how workers' compensation has degraded, state by state, over the years.

Lead ProPublica journalist, Michael Grabell, says it like this:

"With income inequality and economic fairness at the center of national discussion, workers' compensation provides the perfect lens for examining how the social compact has changed. It is one of America's first safety net programs.

"But as a ProPublica investigation has found, state after state has been dismantling its workers' comp system, denying injured workers help when they need it most and shifting the cost of work-related disabilities onto public programs like Social Security Disability Insurance.

"With more than 3.7 million work-related injuries and illnesses reported in 2013, these changes are hurting households across the country. But workers' comp legislation rarely gets significant news coverage, in part because it's such a bureaucratic system that varies state to state."

It's easy as an industry to get upset with this tactic. After all, essentially these journalistic sources are prescribing the recipe to follow, directing the story, facilitating a one-sided discussion.

And this industry reacts defensively, frankly further degrading the image of workers' compensation.

I'm a huge promoter of workers' compensation. The concept is fundamentally sound, and I still believe in its ultimate mission: spreading the risk of work injury so neither employer nor employee faces financial ruin in the event of a work place injury.

But over the course of 100 years the focus of that mission has changed; lenses became clouded with special interest cleaning: pitching one idea to lighten the load for one group or another, or tightening the reins on another - all in the name of controlling costs.

The seesaw of changes to the nation's workers' compensation laws, particularly over the past 30 years, invites examination.

There's a common theme to the direction that ProPublica and Beacon are going: federal oversight.

And frankly, the disparity in systems is an invitation to the feds. I still hold, despite denials, that the OSHA report documenting the various studies through the years that point out these discrepancies was not coincidental...

Some of the nation's biggest thinkers in the work comp space see it coming. These are insurance executives, legislative leaders, top scholars all saying (publicly and privately) that workers' compensation laws are so non-uniform that some sort of federal intervention would not be a surprise.

It wouldn't be hard for the federal government to interpose some standards by simply using Medicaid funding as the incentive: follow the Federal recipe or don't get the money - just like what the Department of Transportation did during the 55 MPH mandate.

While some may criticize Beacon's and ProPublica's mission, I have to support it: workers' compensation is rarely understood by the general public, much less than even known it exists. Any media attention to workers' compensation is, in my mind, better than none.

Workers' compensation is the single largest privatized social benefit system in the world.

It is an important piece of the American economy, and it should be a stabilizing factor to businesses and workers.

As Meg Dalton of MediaShift states, "workers’ comp law has a big potential impact, and backers will respond accordingly."

Will the reporting be fair and unbiased? Maybe, maybe not. But that's not our job in the industry. Our job should be to promote a fair and balanced SYSTEM.

The vast majority of us that work in this system do so because we recognize and appreciate that we can do good things for people in bad circumstances. We operate within the boundaries and restrictions that are provided. It's not up to us to change the law or make the law. Society tells us what to do and when to do it.

I urge you, as a workers' compensation professional, to be part of this reporting. We have a story to tell just as much as any injured worker.

We're not bad people. Workers' compensation is not a bad industry. 

We just haven't had a Beacon lighting the way for a long time.

Thursday, August 27, 2015

Dog Day Discomfort

The Dog Days of Summer are here in full force. It was generally a hundred degrees with nearly 100% humidity every day of the 70th Annual WCI Educational Conference in Orlando, FL.

That weather yesterday produced flight suspending thunderstorms so many people got stranded in the Land of Disney, including WorkCompCentral staffers (but not me - I got out early in the morning before convective activity could propagate).

According to National Geographic, "dog days refer to the dog star, Sirius, and its position in the heavens," the publication states. "To the Greeks and Romans, the 'dog days' occurred around the day when Sirius appeared to rise just before the sun, in late July. They referred to these days as the hottest time of the year, a period that could bring fever, or even catastrophe."

Dog days followed me from Orlando to Southern California where, even at the beach of Hueneme, which is adjacent the deep, cold Hueneme Trench, night time lows have been unusually, and uncomfortably warm.

Dog days, as the National Geographic article points out, could spell catastrophe. I'm not saying that there's any catastrophe pending in California workers' compensation, but certainly an uncomfortable environment is brewing.

Workers' compensation is often called the "poor man's" or "working man's" dispute resolution system, particularly when a termination is involved.

Emotions are high when a worker, particularly a long time worker, gets terminated. Employment lawyers won't take the case because there usually isn't any civil cause of action in the at will employment environment of California law.

Consequently, "injuries" occur in cases that would not be filed by disgruntled employees in civil courts because of cost or procedural barriers.

Labor Code section 3600(a)(10) was added a few reforms ago to arrest the filing of post-termination cases, as they are called, where there is no objectively verifiable injury, as defined.

But a recent Workers' Compensation Appeals Board case seems to state that "injury" is irrelevant for filing purposes.

Samuel Polanco had been a long-time employee of West Coast, working as a painter. They parted on bad terms, when Polanco became upset about his son being laid off by the company.

West Coast fired Polanco for yelling at his supervisors.

Polanco lawyered up, and filed a cumulative trauma claim for injuries to multiple body parts. The carrier's attorney told WorkCompCentral Polanco filed his claim before even seeing a doctor.

At trial, Polanco produced no evidence he had ever sought treatment for any of his allegedly injured body parts before he was fired, and he admitted that he never reported any injury to West Coast.

The Workers' Compensation Judge found West Coast had no notice of his claim prior to his termination and that Polanco's claim was barred by Section 3600(a)(l0)(D).

The whole purpose of 3600(a)(l0)(D) is to bar claims of injury procedurally where there was no notice to the employer of any injury allegation prior to termination, which makes sense particularly in the context of when that code section was amended; prior to the amendment it was quite common for terminated workers to seek redress via workers' compensation so they could "stick it to The Man."

But the Workers' Compensation Appeals Board reversed Hughes last May, saying Polanco was not "disabled" until after he was fired, so based on the plain language exception found in Section 3600(a)(l0)(D) his claim could not be summarily dismissed.

The exception in Section 3600(a)(l0)(D) is, "The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff."

Section 5412 provides, "The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment."

The WCAB noted that it is uncontested that there was no notice of any injury prior to termination, and that there was no disability, allegedly, until AFTER Polanco was terminated...

Curiously, the WCAB ignores the portion of 5412 about knowledge, "either knew, or in the exercise of reasonable diligence should have known..." and the preponderance of the evidence standard.

The only evidence presented in favor of Polanco was a medical report that found Polanco permanent and stationary after date of termination - the WCAB does NOT say whether that medical report by a Qualified Medical Examiner (how did it get that far?) a) found injury, or b) found disability...

And the WCAB, I think, takes the 3600 exception out of context from the rest of that section, and takes the allegation of "disability" out of context with the facts of the case.

I'm all for injured workers getting compensation when they sustain an injury. And I understand using the workers' compensation dispute resolution system to air the grievance - it's cheaper than a civil suit.

But the WCAB got this case wrong.

It's on appeal to the Fourth District, which won't have a decision issued until the weather cools down a bit.

Dog days of Summer ... making things uncomfortable from coast to coast.