Review of Substantial Evidence

I get questions all of the time on various workers' compensation topics, but probably one of the most common subjects concerns evidence, or more specifically, what kind of evidence do workers' compensation judges rely upon.

The simple answer is that in most jurisdictions the evidentiary standard is "substantial evidence."

I know this doesn't help because the term, "substantial evidence," is one of those esoteric legal concepts that has no meaning outside the context of factual application.

Case law has defined "substantial evidence" as what a reasonable mind might accept as adequate to support a conclusion.

Yeah - that's clear as mud!

Who's reasonable? And "might accept"? What about "might NOT accept"? And "adequate" - oh boy.

Forget those legal scholars and these lame attempts to define the undefinable - bottom line is that "substantial evidence" is just, "good enough."

If you have something that you want to support, the evidence just has to be "good enough" to justify whatever conclusion you are trying to derive from it. It doesn't matter that there are five other reports stating the opposite, or that there are more pages, or better author reputations - though those factors may weigh on the value of the evidence.

This is why, in workers' compensation, medical reports that seem kind of shady are "good enough" to support an award. If the judge wants to get to a conclusion and the evidence is "good enough" to get the judge there, then it is "substantial evidence" even if there is other evidence that may be better.

And there does not have to be any certain quantity of evidence to make anything "substantial." One report that has a conclusion different than a half dozen other reports can still be "substantial evidence" so long as it is reasonable to draw the conclusion for which it is proffered.

This doesn't mean that just any evidence can be "substantial" to support an award. Many states have rules and regulations that define what the medical evidence shall contain and the topics covered. Because these regulations are mandatory in nature, failure of a medical report to meet these minimum standards means that such report can not be "substantial evidence."

For example, a regulation may require certain disclosures, or a declaration under penalty of perjury. The failure to meet these minimum standards would make the report incomplete and as a consequence not "substantial" for purposes of evidence because a reasonable mind can not rely upon the report - the author failed to meet mandatory requirements dictated by law.

But the single biggest failure in medical reporting is an error in history - either the history of the injury or the relevant medical history of the claimant.

The error in history needs to be significant enough that some other conclusion would be inevitable if the error did not exist. For instance, if there were facts that would implicate some other cause of injury, or some pre-existing condition, that were not accounted for by the report, which if were considered would lead to a different conclusion - that would not be "substantial evidence."

Another way for a medical report to fail to meet the substantial evidence standard would be if the author were relying on an incorrect legal theory. An example would be if the author were relying upon standards that existed prior to a change in the law - e.g. the threshold of psychological injury in California.

And the report must be based on a reasonable medical probability, not just possibility. Which is to say speculation can not be substantial evidence.

There are of course many more intricacies of this esoterica, because this is one of those legal things that drives engineers and other digit-minded brains nuts; the notion of "substantial evidence" is vague and soft around the edges. There is no clearly defined boundary.

US Supreme Court justice Potter Stewart drew fame in his short concurrence in the pornography case, Jacobellis v. Ohio (1964) with the phrase, "I know it when I see it." That's the standard of substantial evidence.

Another Lesson in Substantial Evidence

Judicial interpretation of workers compensation laws in general relies upon "substantial evidence."

This is a concept that is difficult for many employers/carriers/payers, etc. to grasp. A party may have "better" evidence, but that is not the standard by which the vast majority of workers' compensation awards are held to.

Substantial evidence simply means "good enough." Good enough to support whatever proposition the evidence is being used for.

The standard is whether someone can reasonably rely upon the evidence to support whatever the conclusion is that is being proffered.

In Missouri, an appellate court upheld an award of permanent total disability benefits to a factory worker based on substantial evidence that her work-related back injury, combined with her preexisting physical and psychological issues, left her unemployable, thus qualifying her for the state's Second Injury Fund contribution to a permanent total disability award.

In Sickmiller v. Timberland Forest Products Inc., Nos. SD32257, SD32277 & SD32291, 07/18/2013, published, Tammy L. Sickmiller hurt her back in September 2007 while lifting a wooden pallet in the course of her employment with Timberland Forest Products.

Sickmiller suffered from a preexisting depression, for which she received treatment in 2000. She also had a history of suicidal ideations that began when she lost custody of her children sometime between 2000 and 2001.

On top of that, Sickmiller had been treated for bilateral carpal tunnel syndrome as the result of a work-related injury she suffered when working in 1999 for a previous employer.

The Labor and Industrial Relations Commission found that Sickmiller's injury, combined with her preexisting physical and psychological disabilities, rendered her permanently and totally disabled.

Everyone appealed on various grounds, but for purposes of this discussion, Timberland contended that the Commission’s award to Sickmiller was not supported by substantial and competent evidence. The Second Injury Fund argued that the Commission should not have ordered it to pay Sickmiller's award since Sickmiller's inability to be employed was because of her worsening psychological condition, not her work-related accident.

Notice that Timberland argued that the evidence was a) not substantial and b) not competent.

We can eliminate the "not competent" argument - that's a dead loser. And with regards to substantial evidence, the standard is ... [go to top of column].

Well, the court reasoned that the testimony of the various medical experts – who almost unanimously opined that Sickmiller's work injury caused at least some additional psychological disability – combined with Sickmiller's testimony, constituted substantial, competent evidence supporting the Commission's implicit determination that the work injury was the prevailing factor in causing Sickmiller's total and permanent disability.

The court explained that the Commission was not required to consider Sickmiller's psychological condition as it existed at the time of the work injury in determining the Second Injury Fund's liability so long as Sickmiller's worsening psychological condition was attributable to the work injury, and substantial evidence indicated that it was.

So there you go - another lesson in the evidentiary standards in workers' compensation litigation. 

As to the overlay of personal, non-industrial psychological attributes to her physical status, that's for another column.

A Difficult Lesson in Substantial Evidence

Substantial - that's the evidentiary standard that governs the vast majority of workers' compensation litigation.

The standard of substantial evidence means that the evidence upon which the trier of fact relies can reasonably support the proposition for which it is raised, regardless of what other evidence is out there, and whether or not other evidence may be more persuasive.

In other words, the substantial evidence standard simply asks if the evidence relied upon by the judge is "good enough."

Which is why, in most circumstances, if one is not happy with the trial judge's decision based on the evidence, one should not make an evidentiary challenge unless one can prove fraud, bias or a clearly erroneous conclusion. Attempting to challenge substantial evidence is nearly always an expensive loser.

A Louisiana employer found that out and paid an additional penalty for doing so.

Dustin Estis claimed he injured his back when he fell down a flight of stairs while working for Ambar Lone Star Fluid Service. Estis called a co-worker to assist him after he was unable to get up after the fall. The co-worker called Estis' supervisor, who took Estis to a company physician.

Dr. Gregory Gidman noted tenderness in Estis' back, but found no bruises. An MRI showed a herniated disc and a lumbar bulge. Gidman referred Estis to a neurosurgeon. Estis also visited a physician's assistant and a doctor at Teche Occupational Medical Clinic. Both professionals observed contusions consistent with a fall. Estis chose Dr. John Cobb as his orthopedic surgeon and continued treatment for his injury.

At a contested case hearing Ambar disputed that Estis suffered a work-related injury. A workers' compensation judge found in favor of Estis and awarded $8,000 in penalties and $12,000 in attorney fees.

On Ambar's appeal, the 3rd Circuit Louisiana Court of Appeals noted that Dr. Gidman's report finding no bruises on Estis' back was rebuffed by two other medical professionals, and concluded that the judge's decision to find a compensable injury was not erroneous. In other words, the workers' compensation judge's findings were supported by substantial evidence (the appellate court does not use this term in its opinion, but it is clearly the evidentiary standard that is applied on review).

Similarly, the appellate court was not swayed by the employer's argument that Estis' claim should have been rejected because his story of events varied slightly over time, and Dr. Gidman's initial report showed no contusions, scrapes or scratches. The court said that Estis' version of events was corroborated by Ambar's safety officer, and the two medical professionals at Teche Occupational Medical Clinic found bruises consistent with a fall:

"The record reveals that Ambar has substituted suspicion and innuendo for facts and evidence. Unfortunately, neither of those imposters are sufficient to reasonably controvert Estis' claim."

Ambar was upset that the workers' compensation judge awarded Estis' attorney $12,000 in fees. Big mistake. The employer's appeal cost it an additional $16,000 in fees payable to the claimant's attorney for a total attorney fee award of $28,000.

Lesson for employers/carriers - don't mess with substantial evidence.

Case: Estis v. Ambar Lone Star Fluid Service, Nos. 12-206, consolidated with 12-207, 10/03/2012.

The NFL, Apportionment and Substantial Evidence

It's playoff season in the National Football League so it is only fitting that we get workers' compensation news concerning professional football claims.

In a fact pattern that I have personally defended against (unsuccessfully by the way) when I was practicing law, the Oakland Raiders may be stuck paying for the entirety of a claim that has an 11 year cumulative trauma history because of a failure of medical opinion on the issue of apportionment.

The Oakland Raiders have asked the California 4th District Court of Appeal, Division 3, to review a panel decision holding the team and its insurer, Ace USA, liable for former defensive tackle Sean Gilbert's permanent total disability claim for cumulative injuries. Gilbert played for the Raiders for only the final season in his career.

The Workers' Compensation Appeals Board (WCAB) in its panel opinion said that the Raider's Qualified Medical Examiner's (QME) opinion was not substantial evidence on the issue of apportioning Gilbert's injuries to the other teams he played for.

The Los Angeles Rams drafted Gilbert in the first round of the 1992 NFL draft, and he spent the next four seasons playing for the franchise. Gilbert joined the Washington Redskins for one season in 1996, did not play at all in 1997, and subsequently signed with the Carolina Panthers for the next five seasons. The Oakland Raiders employed Gilbert for the last season of his career in 2003, when he played six games for the Northern California franchise as a backup.

The Raiders' QME apportioned liability for Gilbert's claim based upon the percentage of time he spent playing for each team.

But two of the WCAB commissioners agreed with Gilbert's QME who said that apportionment could not be done with any reasonable medical probability because there wasn't any evidence of limitations or injury during the 11 years Gilbert was in the NFL.

The majority said that the defense could have cross-examined Gilbert's QME but didn't - no substantial evidence means you lose! And the dissenting commissioner simply said that he didn't think Gilbert's QME adequately addressed the issue either, but it sounds like he was leaning towards the majority outcome anyhow:

"Escobedo v. Marshalls (2005) requires a physician to determine what percentage of applicant's permanent disability was caused by his industrial injury and what percentage was caused by other factors," Commissioner Moresi wrote. "However, in Benson v. Permanente Medical Group (2007), the Appeals Board noted that under some circumstances it may be impossible for a physician to parcel out between successive injuries the causative factors of a current level of disability. This may have been [Gilbert's QME's] intent, but he does not adequately address this issue."

Here's my take-aways from this case:

1. The "good old days" of "expert opinion" are gone - medical opinion must be supported by both fact and science. Just saying it is, because one is an expert, doesn't make it so. If the Raider's QME was apportioning to other exposure then there needs to be supporting evidence upon which to base that opinion and in this case just dividing up the liability without some evidence in the record that indicates an exposure is not substantial evidence. We see this all the time.
2. When you don't have substantial evidence to support your case, and the other side has better evidence (remember that substantial evidence is evidence that is "good enough"), then there should be an attempt to challenge that evidence. In this case, either get a change in opinion that supports apportionment or disqualifies the opinion completely so you can start over.
3. Professional football is brutal and the players come out of their careers with significant injuries and disabilities. workers compensation, work comp, injured worker 

That's Just the Way It Is

I just finished up several days of lecturing and attending classes at the annual American Academy of Orthopedic Surgeons (AAOS) workers' compensation course.

Physicians that belong to AAOS and in particular who attend the workers' compensation course are very concerned with "doing the right thing," which in many cases means discerning between "real" injuries and those that have other motivations behind them. I perceived difficulty in the physician trained mind rationalizing between lack of objective indications of disability and the rewards (i.e. indemnity) system.

One big theme that came across in my discussions with these physicians is their frustration with workers' compensation rewarding people who, in their opinion, were not justified in claiming a disability, and much of my lecture is about the legal fiction of disability and other elements of the system that, to the scientific mind, don't make sense or can not be rationalized, like presumptions.

A part of my lecturing is about evidentiary standards and how that affects cases as well as the work the physicians are asked to perform. I review with the physicians substantial evidence, preponderance of the evidence and clear and convincing evidence standards.

Another part of my training involves enlightenment on basic politically motivated legislated exceptions or presumptions that various jurisdictions implement in their systems to suit different special interests.

Take for instance cancer presumptions applicable to firefighters or other public safety workers.

A recent Colorado case combining the concepts of evidence and presumptions serves as a good review, and would likely cause these doctors some consternation.

In City of Littleton v. Industrial Claim Appeals Office of the State of Colorado, No. 10CA1494, 11/01/2012, (published) Jeffrey J. Christ worked as a firefighter for the City of Littleton. In 2007, doctors diagnosed him with glioblastoma multiforme, a type of brain cancer. He underwent surgery and was treated with chemotherapy and radiation. Christ then sought workers' compensation benefits to cover his treatment.

An administrative law judge denied Christ's claim. Although the judge acknowledged that Christ's cancer was statutorily presumed to have arisen from his employment, the judge concluded Littleton had carried its burden proving Christ's cancer was "not caused by his occupational exposures."

The Industrial Claim Appeals Office reversed the judge, and on remand, the judge issued Christ an award for medical and disability benefits.

While his benefits were being determined, Christ died. His widow, his daughter, and his daughter's mother then substituted in as claimants.

After the Industrial Claim Appeals Office upheld the judge's award of benefits, Littleton sought judicial review.

After reviewing the statutory presumption in favor of the firefighter, the Court of Appeals explained that to overcome this presumption, the employer must prove by a preponderance of the evidence that the firefighter's cancer did not result from, arise out of or arise in the course of the firefighter's employment.

The employer failed to do this. And while an employer may also attempt to rely on general causation evidence − such as epidemiological studies − to prove that the firefighter's disease did not occur on the job, the evidentiary standard, preponderance of the evidence, is a much higher standard than the general causation standard of substantial evidence.

While Littleton attempted to show that a firefighter's occupational exposures cannot cause any form of brain cancer, the court said this effort fell short of its burden of proof.

So what did we learn class?

1) Even if the workers' compensation system, or parts of it, may not make sense, it is what it is. We deal with it. We live within its confines and definitions and rules, including presumptions because... that's the law.

2) Substantial evidence isn't the same as preponderance of the evidence, and to overcome the higher standard requires a much greater degree of reliability and specificity in the evidence. In other words, an epidemiological study isn't worth anything - there must be solid, credible, scientific evidence that rises to the Daubert standard to meet the burden specific to the case at hand.

3) Presumptions are just part of the bargain. It's just the cost of doing business. If one does not like presumptions then one is free to lobby the legislature to change the state of the law.

And that's just the way it is.

Texas Rules, Evidence and the Supreme Court

I write quite a bit in this blog about substantial evidence and how the concept can get misconstrued by various parties.

There is a very interesting case before the Texas Supreme Court that essentially deals with the concept of substantial evidence, but with a bit of a twist: can a medical report still be substantial evidence upon which to support an award if the medical report has an erroneous regulatory date in it due to failure of communication by the governing authority?

The case is State Office of Risk Management v. Elaine E. Banks Joiner.

In the underlying workers' compensation case, the hearing officer issued an award based on the medical reporting of the claimant's treating physician, Dr. Brent Davis.

Dr. Davis gave Joiner an impairment rating of 34%, but his medical reporting form had a date of Maximum Medical Improvement that was seven days past the date to which it was stipulated at the Texas Workers' Compensation Commission (7/10/2006).

The defense obtained a Designated Doctor exam from Dr. Elliot Bader, which rated 7%.

Dr. Bader's report also had the wrong MMI date, listing it as seven days before the "statutory" MMI date.

Thereafter, Dr. Bader was sent a letter to review Dr. Davis' report and was asked to reconsider his rating. That letter also advised Dr. Bader of the correct MMI date.

That information was never transmitted to Dr. Davis.

Dr. Bader did not change his opinion on impairment rating but did correct the date of MMI in his subsequent report.

The hearing officer, regardless of the incorrect MMI date, based his award on the opinion of Dr. Davis.

The issue in the case is now before the Supreme Court as to whether the hearing officer could have legally justified his award on the basis of a medical report with an incorrect statutory/regulatory MMI date.

SORM argued the regulations are clear about MMI dates and reporting. Joiner's attorney countered in his brief:

"The Workers' Compensation Act and Division rules are also clear in what they do not say. SORM cannot cite a single statute, rule, or court decision invalidating a doctor's certified impairment rating on the basis that the doctor incorrectly stated the statutory MMI date on a form. This is not because the legislature or division did not contemplate that certain requirements invalidate a report. Both the Labor Code and division rules specify when a report is invalid, and neither suggests that an impairment rating assigned after statutory MMI will result in invalidation because of a misstated date."

SORM argues strict construction, stating that the DWC rules currently give claimants clear notice that impairment ratings based on erroneous MMI dates are inadmissible.

Joiner's attorney is not so convinced that the rules are so clear, nor that they are of such a mandatory nature.

He argues, "The TWCC 69 forms stipulates that the treating doctor, by law is entitled to know, review and correct information that TWCC collects on its form about them."

SORM also argues that Davis did not correctly calculate the impairment rating, failing to accurately follow the AMA Guides - I don't know if that is an accurate assessment but certainly could be a factor in whether Davis' report could be relied upon.

To complicate matters, there is a rule-making process that has been under way for some time at the Texas DWC to clarify application of the MMI rule.

But the truth of the matter is that this is really about substantial evidence - does the date of MMI REALLY make a difference in whether a medical report is sufficient to support an award?

At question is Texas Rule 130.1. That rule provides for the specific assignment of an MMI date and further provides:

"Assignment of an impairment rating for the current compensable injury shall be based on the injured employee's condition as of the MMI date considering the medical record and the certifying examination."

The Texas Supreme Court has been taking its time on this case. Review was requested in May 2012, but the court kept the case pending until February of this year, when it requested additional briefing to help it decide whether to grant review of the case.

I'll make a bold prediction (but don't go to Vegas with this): The Supreme Court will rule in favor of Joiner because Davis' report is "good enough" notwithstanding an erroneous MMI date (which in effect really only affects the date benefits are to begin...).

There you have it - I hope my crystal ball doesn't need polishing.

The Fiction of Disability and the Talmage Triage; A Case Study

I gave a presentation some time ago about the legal fiction of disability.

The point of my presentation was that disability in the legal sense is simply a designation for attaching value, and that it is not synonymous with inability to work.

Most of the folks in the audience got it - they understood that just because someone is 100% disabled from a workers' compensation point of view that there is still gainful employment that could be performed.

There was one lady in the audience who challenged me constantly on that statement. Her opinion was that if someone is 100% disabled then they are essentially of vegetative state incapable of doing anything of value and can not work - period.

The concept that disability is only for the purpose of determining a number - because that's how we deal with injury and displeasure in America, by handing out money - did not settle well with her. She was a claims adjuster and from her standpoint the payment of disability indemnity precluded any other form of income.

WorkCompCentral news reported a case this morning where the notion that disability is just a fiction is painfully (sorry for the pun) made clear. What was also clear from the case was that despite one's workers' compensation adroitness, the system will push back to return to a scale of reasonableness if the rules are just followed.

In Gonia v. Robin, Carmack & Gonia et al., ADJ1925946, 02/02/2012, Gonia was injured on Jan. 4, 1996, while working as an "attorney/driver" for the firm, which represents employers.

I like that the job was listed as "attorney/driver". Defense attorneys, particularly those who are popular with their clientele, are professional drivers. When I was doing defense work it was no problem racking up 35,000-40,000 miles in one year driving from San Luis Obispo out to Riverside/San Bernardino and down to Anaheim for cases. Driving all those miles wears on the body, regardless if you are in a high end sedan. It hurts...

A workers' compensation judge awarded her 100% permanently disability for injuries to her low back, cervical spine, left hip, left lower extremity, left upper extremity and psyche, although Gonia was able to return to work full-time as an attorney.

I might note that if this were a post 2004 injury and under the AMA Guides such a rating likely would not be possible. Which is the point that I was making in my presentation - that disability is a legal fiction.

Anyhow, Gonia's doctor, Todd H. Lanman, noted in a December 2004 report that Gonia had a housekeeper "to change beds, vacuum, sweep, and mop floors," and that this was "reasonable on an industrial basis, as such activities would increase her pain level."

Let's examine this statement: activities of daily living, i.e. doing housework, "would increase her pain level", and as a consequence was reimbursable through workers' compensation insurance. I know what the law is/was, that basically if substantial evidence indicated that there is medical necessity then the cost is born by insurance.

The irony is that these activities, "change beds, vacuum, sweep, and mop floors" likely don't involve any particular physical strain that may be different from something more pleasurable, such as gardening, playing golf, earning a good living as an attorney, etc. One of my earlier columns discussed the Talmage Triage of Disability (I made that up) - the third component of that triage is Tolerance, the subjective component of pain. Changing beds, vacuuming, etc. clearly are not pleasurable activities, thus the lower tolerance for pain. Would she also need assistance with other physical activities that were more pleasurable despite pain?

Back to the case.

In March 2008, Gonia filed a petition for reimbursement for medical expenses, asking State Fund to reimburse her for housekeeping services dating back to 1996. The request asked for $40 per week for the early years after the injury, but noted that in September 2000 she had moved into a house in Studio City that was 1,000 square feet larger than her previous residence and now needed $80 per week.

The total reimbursement request was for $88,903.33. That's a tidy sum, and would cause a claims adjuster to take a second look at that request...

Gonia's doctor addressed housekeeping services in a January 2009 report, advising that Gonia "will need to have housekeeping two times a week for the next 12 weeks" following her cervical fusion surgery.

State Fund, however, conducted a utilization review. The reviewing doctor, orthopedist Emmit R. Berg, concluded housekeeping services were not a "medical necessity." State Fund denied Gonia's request.

There was no evidence Gonia ever objected to this decision.

The Workers' Compensation Judge awarded reimbursement back to December 2004 and ongoing.

On reconsideration the Workers' Compensation Appeals Board (WCAB), in a decision written by Commissioner Alfonso Moresi, reversed.

Moresi reasoned that the request for housekeeping services described in the January 2009 doctor's report should have been denied because Gonia had not challenged the utilization-review determination that such services were unnecessary. That's a pretty simple, straight forward application of the law and difficult to disagree with.

The WCAB ruled that the December 2004 report's suggestion that housekeeping services were appropriate was not substantial evidence.

"There is no statement by the physician that the additional services are a vital part of applicant's medical treatment or that her medical condition would be placed in jeopardy if the services were not provided," Moresi noted. "To the contrary, other evidence indicates that the applicant's desire for increased housekeeping services flowed in substantial part from the fact that she decided to move to a larger house."

Moresi also pointed out that the report engaged in "no discussion of any limitations on applicant's ability to perform housekeeping tasks," and concluded that due to these deficiencies, could not be substantial evidence to support the judge's award of benefits.

Commissioner Ronnie Caplane joined Moresi in his decision, but Commissioner Neil Sullivan dissented, stating, "It was only necessary that applicant show that the requested housekeeping services (were) medically necessary and reasonable." I disagree with Sullivan - the showing must still be by substantial evidence and I think Moresi got it right.

In a comment to an earlier post, an applicant attorney who "vehemently" disagreed to my opinion said that, "No one should have to work in pain. Pain should NOT be part of life and the function of the medical profession is to cure or relieve it, costs be damned." He didn't respond when I asked, "Are YOU willing to pay for that?"

We have no problem paying for the pleasures of living. But we want others to pay for the pains of living.

Indeed, opportunism is reconciled only by reasonableness enforced through the Rule of Law. Professional drivers, like defense attorneys, are subject to aches and pain during the work day. Racking up the miles driving from board to board, deposition to deposition, appearance to appearance, in tough traffic, rough roads, causes pain. I know - been there, done that.

Idealistically, pain should not be a part of life. Realistically, it is. It's all about Tolerance. Getting paid well makes pain more tolerable. Daily home chores are not pleasurable and don't produce much satisfaction, so they are not so tolerable.

Attorney work for Gonia is clearly pleasurable enough for her to tolerate pain. And frankly I applaud her for returning to work. This is a great result in my opinion - that despite her great disability this person is able to continue providing value to society.

In my opinion though, the WCAB's decision was rational, logical, and cut through the Talmage Triage of Disability to get to a result that makes sense.

OK Comp Reform Intriguing

I'm intrigued with the ongoing workers' compensation "reform" (I usually always put the term "reform" in quotes when referring to work comp legislation intended to make substantive changes because in reality what generally occurs is some tweaking but no real wholesale change of a system) attempt in Oklahoma because of the change in the burden of proof for injured workers to "preponderance of the evidence."

 Most states make benefits available so long as there is "substantial evidence" supporting a finding of AOE/COE.

"Substantial evidence" in general means that regardless of whether there is some "better" evidence, if there is enough to support a finding then it's a winner. It is the equivalent of "some credible evidence" - just enough to find what is proposed.

On the other hand the "preponderance" standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true.

In most cases this probably won't make a difference, but in disputed cases this change will increase the amount of litigation just to resolve the base question of compensability. This may or may not be a good thing for OK employers, who have been pushing for this change.

The good thing is that perhaps fewer cases will qualify for work comp, which on its face means lower work comp bills for the employer.

The downside, and there is always a downside, is that while cases linger in the courts on evidentiary hearings relative to compensability, the clock keeps ticking on all other aspects of the claim making it much, much more expensive if the outcome is against the employer.

Going to court with competitive evidence and conflicting conclusions means really knowing the trier of fact, their philosophy on comp, and track record of rulings. Get any of those variables wrong, and the probability of a favorable outcome declines.

If this measure passes ( the Senate unanimously passed SB 878 yesterday and the bill moved to the House and is scheduled for a vote today) you can bet litigation will increase in OK, and some employers won't be happy with their comp bills a few years down the road as their x-mods wreak havoc on base rates due to that one enduring disputed case that didn't come out the way the employer thought it would.

But, on the bright side for my OK bar card holding colleagues, local attorneys who know their judges should do just fine with this "reform."

How Would You Rule?

How would you rule in this case?

A city police officer sustained an injury to his low back on April 28, 2002, when his gun holster caught on the steering wheel while he was getting out of his patrol car. He settled his claim for temporary and permanent disability indemnity against the city by Compromise and Release (C&R) for $109,582.42, less a $69,514.00 lien and attorney fees in 2008.

The settlement was approved by a Workers' Compensation Administrative Law Judge (WCJ) and the C&R specifically provided that it did not release the city from liability for "reasonable and necessary future medical care."

The officer's doctor later diagnosed him with sleep apnea and prescribed the use of a Continuous Positive Airway Pressure machine for which the officer asked the city to reimburse him for the cost of the machine.

The city refused, and at a hearing the WCJ relied upon a report by the officer's doctor that said "(s)leep apnea has many causes but is commonly associated in the chronic pain setting with both the use of chronic opioids as well as weight gain." The doctor's report stated the officer "has been dependent on chronic opioids for his current level of function," and "has gained some weight since his injury" and it was his opinion that those factors contributed to his sleep apnea.

The WCJ concluded that the unrebutted opinion of the officer's physician, combined with the officer's credible testimony, established that the sleep disorder was a consequence of the industrial injury, for which the city was liable.

On reconsideration the Workers' Compensation Appeals Board (WCAB) adopted the WCJ's recommendations finding that the unrebutted opinion of the officer's longtime treating physician was "based on an adequate understanding of the development and course of (the officer)'s symptomatology," and the doctor's "conclusion that (the officer)'s sleep disorder is a consequence of his industrial injuries is logical and is justified by a cogent rationale."

A petition for writ of review has been filed with the court of appeals, the city arguing that the WCAB's ruling was contrary to a "strong public policy favoring the enforcement of … judicially sanctioned settlement agreements, and that substantial evidence did not support the administrative ruling.

If I'm the appellate court clerk assigned to review this case and make a recommendation to the justices about whether to accept the writ or not, my advise would be "no", i.e. writ denied.

Here's what's wrong with this case:

The city went to a hearing with out any rebutting evidence - I assume thinking that the medical report of the officer's treating physician either wasn't admissible or could not be relied upon as substantial evidence. Or perhaps the worst case scenario: that the claim just wasn't being monitored correctly and the city got caught unprepared for a hearing with no evidence to submit for consideration. Regardless, going to a hearing with out rebutting evidence is nearly always a sure way to lose.

The amount in controversy is $1,237.97 - not a lot of money relatively speaking. So the question becomes what are the underlying motivations for seeking review?

In addition, there does not seem to have been adequate monitoring of the officer's medical treatment in that it is apparent that the officer was left to his own discipline relative to the intake of pain medication. What happened with utilization review in this case?

Sure, the premise of going from a back injury to sleep apnea may seem askew, but in the face of no other evidence, how would you rule as the trial judge?

Garbage In, Trash Out

Traveling the nation, I routinely field criticism about the California workers' compensation environment, particularly from those on the insurance side of the spectrum - our laws, and in particular how they're interpreted by the courts, drive them crazy.

California's 2nd District Court of Appeal this week issued an unpublished ruling ("unpublished" is a technical legal reference meaning that the opinion can not be cited in other cases as precedence) that is one of those cases.

Carlos Rodas, a 32 year old dishwasher for Guido's Restaurant, suffered a pulmonary hemorrhage while hauling a load of trash to the garbage bin behind the restaurant.

A restaurant patron found Rodas dead in the parking lot.

Truck Insurance Exchange, the insurance company for Guido's, contested liability for the claim because there was no evidence that his work-related activities had caused the artery in his lungs to rupture.

There was evidence that Rodas' lungs were weakened by tuberculosis.

The workers' compensation judge found Rodas' death compensable based on a medical report Truck argued was not substantial evidence, and a split Workers' Compensation Appeals Board panel sided with Truck.

Commissioners Deidra Lowe and Katherine Zalewski said there was no evidence that Rodas had exerted himself by rolling the trash can out on a dolly, that there also was no evidence of a smell emanating from the garbage, and that the medical report was therefore based on "speculation and unfounded assumptions."

Commissioner Marguerite Sweeney dissented, arguing that the medical report relied on by the trial judge "was eminently reasonable" in assuming that "transporting the large, overflowing (probably heavy) trash can across the parking lot required a good deal of physical exertion" and that there were "noxious fumes wafting from the overflowing trash can."

The 2nd DCA on Wednesday reversed the WCAB, finding compensability, and said it was "unreasonable to assume Rodas' work played no role."

"That garbage emits odors that will cause a person to cough and that physical exertion is required to manhandle a large trash can over a distance of 300 feet are eminently reasonable inferences validated by common experience," the court said.

Given the evidence that Rodas' lungs were weakened by tuberculosis, the court said it was reasonable to infer that such exertion had caused Rodas to begin coughing ultimately rupturing his lungs and causing him to suffocate from blood in his lungs.

Causation could "logically and reasonably be inferred from the circumstantial evidence," the court said.

Commentators in the WorkCompCentral story on the case this morning critiqued that the court stretched and that "widows and orphans make for bad law," in particular because the court noted that the medical report should not have been admitted into evidence in the first place except that the defense waived the objection at the trial level by failing to raise it.

Which raises a good point about playing in the California workers' compensation sand box: the law is to be liberally construed in favor of the injured worker.

The insurance industry doesn't like it, but the rule simply means that there's a greater, some would say much greater, burden to dispute benefits than there is to claim benefits.

Which is why, after all is said and done, when in the California system generally it's just cheaper and more efficient to either pay, or take a discount in the settlement of, a claim. Maybe it makes no sense, perhaps it drives non-Californians crazy, but that's the way it is.

The case is Rodas v. WCAB.

Courts and The Bargain

This week I've been writing about the Grand Bargain - whether it is still Grand and whether it is still a Bargain.

And my opinion has been that certainly workers' compensation has changed as has the economy it covers, and that each change involves bargaining and compromise. There are winners and there are losers.

We sometimes wonder how does the bargain change and why the winners and losers get redefined - a case reported yesterday in WorkCompCentral is demonstrative.

Armando Tavares had worked as a truck driver for Luis Scattini & Sons. The 48-year-old father of four complained of chest pains while he was at work on June 13, 2011.

After Tavares finished pressure-washing the disc brakes on his truck, he asked his supervisor for a ride to the doctor's office.

Tavares indicated that he needed to use the restroom before departing, and his coworkers became concerned when he did not emerge from the portable toilet.

Tavares' colleagues forced the door open and found him slumped inside. Emergency responders were summoned to the scene and they attempted to revive Tavares, to no avail. A coroner later determined that Tavares had died from ischemic heart disease.

Tavares' widow and dependent children filed a claim for death benefits, which Scattini contested.

Dr. Revels Cayton was assigned to the case as the panel qualified medical evaluator. Cayton opined that Tavares' work activities contributed to the cause of his heart attack and death.

Cayton noted that Tavares had "very severe coronary artery disease," which "placed him at increased risk for the development of a sudden cardiac event."

Cayton said he thought it was "fairly obvious given the extensiveness in the coronary disease," that Tavares would still be alive "had he not washed those disc brakes and had he not come to work that day."

Scattini then obtained a report from Dr. Maria Nellie Betancourt which attributed Tavares' death was "solely due to the nonoccupational, preexisting and extensive coronary artery disease without any contribution from work."

Betancourt opined that Cayton’s finding of a causal-connection was speculative because Tavares was not performing any physically demanding activities at the time of his heart attack.

As there was some evidence that Tavares had been complaining of chest pain for two days prior to his death, Betancourt said it was possible that Tavares' heart attack had actually begun long before he got to work.

Betancourt also posited that Tavares "may have had to do a Valsalva maneuver to force the stools out" when he was in the restroom. The Valsalva maneuver is the medical term for the act of attempting to forcibly exhale while keeping the mouth and nose closed.

Betancourt said this action "may have tipped the scales enough to provoke a cardiac decompensation leading to death," and she thought this was "most likely" what had happened.

The Workers' Compensation Judge relied on the opinions of both doctors to find that Tavares' death was compensable. He awarded $320,000 to Tavares' family last December.

Scattini petitioned for reconsideration, but a WCAB panel comprised of Commissioners Katherine Zalewski, Marguerite Sweeney and Deidra Lowe upheld Crymes' ruling in March.

Scattini then sought judicial review, and the 6th District Court of Appeal issued writ on Sept. 14, accepting the case.

I was frankly surprised to see an appellate court accept the case for review. There is a long line of case law about heart attacks at the work place, and in general, if a heart attack is experienced at work, regardless of the co-morbid factors or non-industrial onset, it is compensable.

Scattini's lawyer argues that the "WCAB's order denying reconsideration allows a decision to stand which does not comport with well-established legal precedent as to what constitutes credible scientific evidence," stating that the proper standard for review of the medical evidence is the Daubert standard.

The Daubert standard is used in Federal courts, and has been adopted formally by some states, discounted by other states, and some states have been silent on the issue. California is one of those states.

The general standard in California though is "substantial evidence": is the evidence "good enough" that it can be relied upon to support a conclusion, even in the face of perhaps better, contradicting evidence.

Did Scattini bargain (or in actuality, its insurance carrier, Star Insurance Company administered through Meadowbrook Insurance Group) for a heart attack? Did Tavares bargain for a fight?

Probably none of this. The bargain is being mediated by the courts in this situation, where neither Business nor Labor have much persuasion beyond the facts and the law, and there may be an alteration to the generally accepted standard of evidence in workers' compensation heart attack cases.

Or not.

Which brings me to my point about the Grand Bargain and its various permutations through the years - If the facts are not in your favor, argue the law; if the law is not in your favor, argue the facts; if neither the law nor the facts are in your favor, baffle 'em with bullshit.

Now you know how the Grand Bargain has become distorted over time.

Apportionment Fight in CA - What Did You Expect?

The California Senate Judiciary Committee on Tuesday passed AB 1155 by Assemblyman Luis Alejo, D-Salinas, on a 3-2 vote, with Democrats supporting it and Republicans opposed.

The bill would amend California Labor Code Section 4663 by adding language to provide that certain characteristics, including race, age, and gender, shall not be considered a cause or factor of a disability with regard to apportionment determinations. Similar bills were presented to Governor Schwarzenegger twice previously and vetoed both times.

The argument for the bill is that injured workers within a "protected class", such as gender, are having adverse disability rulings because doctors are apportioning to immutable characteristics of that class - e.g. apportioning to osteoporosis in a woman even though there was no evidence that disability from such condition preexisted the industrial injury.

Opponents of the bill say that it would increase costs because there would be more litigation over apportionment, and would increase permanent disability indemnity costs as more cases would have less apportionment found.

Both of these arguments have some merit, but the real cause of the apportionment debate stems not from the law, but from the medicine.

Labor Code section 4663 states that apportionment must be based on causation. 

Subsection (c) states in relevant part; "A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries." (Italics & bold added for emphasis).

The problem stems from physicians writing reports allowing pathology to substitute for causation, regardless of the lack of any pre-existing disability. I have read many, many medical reports that will apportion, for example, a woman's orthopedic disability to osteoporosis where prior to the injury there was no evidence that such condition was disabling.

Since the standard for evidence in California workers' compensation is a low threshold, "substantial evidence," then such a medical opinion can control the case.

The issue isn't what the law says or doesn't say, the issue is the quality of the evidence. 

In our WorkCompCentral Education department we teach a course on medical report preparation. I get the inglorious job of grading medical reports. Let me just say this simply - the quality of reporting is abysmal, with complete disregard for facts and utter misunderstanding of the legal requirements.

Physicians need education and guidance regarding the interpretation of the law as it applies to the preparation of evidence. The standard of apportionment in Labor Code section 4663 is easy enough to comprehend - "caused" is past tense looking retrospectively at "direct result" - if a disability did not exist prior to the injury, then the injury caused the disability. There should be no argument after that analysis and anything else is speculation.

Florida Looks to Curtail Presumptions to Save Money

One of the problems with establishing presumptions of causation in a workers' compensation scheme occurs when lawmakers want to revise or constrict the application of a presumption to curtail abuses.

Once a presumption has been established it is very difficult politically to take it away even though in a practical sense, assuming the medical evidence is available, provision of benefits for an industrial disease should not be affected.

Such is the case in Florida as lawmakers in that state will be asked to limit a presumption contained in the state's 22-year-old "heart/lung" law that tuberculosis, heart disease and hypertension contracted by a first responder is an illness that arose in the course and scope of employment.

R.J. Castellanos, director of the state Division of Risk Management, told the Senate Budget Committee on Nov. 16 that the presumption, which is granted to all police, firefighters, and corrections officers who pass a pre-employment physical, has cost the state employees' workers' compensation system $30 million since 2003.

Castellanos is one of eight members on the Task Force on Public Employee Disability Presumptions, which was created as part of Senate Bill 1128, a package of pension reforms signed into law by Gov. Rick Scott on June 23.

The pension reform bill called for the task force to look at statutory disability presumptions – in both the retirement and workers' compensation systems across the nation – and report back with recommendations for legislative action by Jan. 1, 2012.

Jim Tolley, a task force member and governmental affairs director for Florida Professional Firefighters, told WorkCompCentral the debate over the Heart/Lung law already has begun with the filing of bills in the House and the Senate filed by State Rep. Frederick Costello, R-Ormond Beach, and Sen. Alan Hays, R-Umatilla.

The bills would allow employers to use the medical history and personal habits of Florida's first responders to rebut the occupational presumption by providing evidence of "other medical conditions or behaviors that are associated with the disease or condition subject to the presumption"such as cholesterol, body mass, or a history of tobacco and alcohol use which could have contributed to a claimant's condition.

In addition, the bills (House Bill 365 and Senate Bill 910) would limit the presumption to first responders who have worked for their current employer for at least five years and are under the age of 37.

Employers would have to rebut the presumption in those cases by a "preponderance" of the evidence for the limited group of responders still eligible for the presumption. Current law requires employers to present "competent" evidence to rebut the presumption, which is now provided to all first responders regardless of years of service.

Predictably, the Florida Police Benevolent Association and Florida Workers' Advocates (FWA), a claimants' lawyers' group, oppose the measures. But the legislation has picked up support from the Florida League of Cities, which operates a workers' compensation pool for member cities.

Tolley told WorkCompCentral that the task force also may call for specifying certain cancers to be presumed job-related for firefighters, police and corrections officers and that the panel also is debating whether to require wellness plans for police and fire departments.

These sort of changes to presumption laws could be expected during these difficult economic times when municipalities, state agencies, and other governmental bodies are searching for every possible savings.

If you are a regular reader of this blog, you know that I'm not a big fan of presumptions. The argument in favor of causation presumptions is that it saves claimants seeking benefits for terrible diseases and illnesses time, money and aggravation to get that which should be an entitlement.

In addition, proponents of such presumptions argue that in order to recruit new members to first responder occupations such benefits are necessary.

I don't think these arguments stand the logic test. If a disease or illness truly is occupational then the medical evidence will bear that out. Sure there will be some that are questionable and that is the purpose of the dispute resolution system - to ferret those out. In fact, a presumption law such as the one under attack in Florida is not an absolute presumption. It is a rebuttable presumption, so litigation continues and is probably more prolonged than normal as the parties seek to get substantial evidence to support their positions.

I also don't think that your typical recruit is even thinking about workers' compensation presumptions when they sign up for duty. Young people don't have such things on their radar screens when they are seeking a job.

Police and firefighters have powerful lobbies, and I'm sure this will be a significant political fight. It will be interesting to observe what happens in Florida. This may be the start of a new trend as other states start looking at what they can, and can not, afford while the nation tries to dig its way out of this prolonged recession.workers compensation, work comp, injured worker 

Jurisdiction and Compensable Consequence

I have posted quite a bit in this blog about the futility of specialty legislation - from my observations of 30 years in this industry, specialty legislation never really works as intended and there always seems to be some way around it.

Last year the National Football League and its compatriots in other professional sports leagues pushed for and got the Governor's signature on AB 1309 - that's the bill that limits California jurisdiction over out-of-state player claims with minimal contacts to the state.

The intent was to restrict access to California's liberal workers' compensation laws, so AB 1309 amended Labor Code section 3600.5 with the following:

***********(c) (1) With respect to an occupational disease or cumulative injury, a professional athlete who has been hired outside of this state and his or her employer shall be exempted from the provisions of this division while the professional athlete is temporarily within this state doing work for his or her employer if both of the following are satisfied:

(A) The employer has furnished workers’ compensation insurance coverage or its equivalent under the laws of a state other than California.

(B) The employer’s workers’ compensation insurance or its equivalent covers the professional athlete’s work while in this state.

(2) In any case in which paragraph (1) is satisfied, the benefits under the workers’ compensation insurance or similar laws of the other state, and other remedies under those laws, shall be the exclusive remedy against the employer for any occupational disease or cumulative injury, whether resulting in death or not, received by the employee while working for the employer in this state.

(3) A professional athlete shall be deemed, for purposes of this subdivision, to be temporarily within this state doing work for his or her employer if, during the 365 consecutive days immediately preceding the professional athlete’s last day of work for the employer within the state, the professional athlete performs less than 20 percent of his or her duty days in California during that 365-day period in California.

(d) (1) With respect to an occupational disease or cumulative injury, a professional athlete and his or her employer shall be exempt from this division when all of the professional athlete’s employers in his or her last year of work as a professional athlete are exempt from this division pursuant to subdivision (c) or any other law, unless both of the following conditions are satisfied:

(A) The professional athlete has, over the course of his or her professional athletic career, worked for two or more seasons for a California-based team or teams, or the professional athlete has, over the course of his or her professional athletic career, worked 20 percent or more of his or her duty days either in California or for a California-based team. The percentage of a professional athletic career worked either within California or for a California-based team shall be determined solely by taking the number of duty days the professional athlete worked for a California-based team or teams, plus the number of duty days the professional athlete worked as a professional athlete in California for any team other than a California-based team, and dividing that number by the total number of duty days the professional athlete was employed anywhere as a professional athlete.

(B) The professional athlete has, over the course of his or her professional athletic career, worked for fewer than seven seasons for any team or teams other than a California-based team or teams as defined in this section.

(2) When subparagraphs (A) and (B) of paragraph (1) are both satisfied, liability for the professional athlete’s occupational disease or cumulative injury shall be determined in accordance with Section 5500.5.

(e) An employer of professional athletes, other than a California-based team, shall be exempt from Article 4 (commencing with Section 3550) of Chapter 2, and subdivisions (a) to (c), inclusive, of Section 5401.
***********

The section was also amended to define "professional athlete."

Note that the amendment to 3600.5 deals only with cumulative trauma or occupational disease claims.

An athlete who sustains a specific injury, or at least alleges a specific injury, would not be precluded for filing in California.

And this is easily evidenced by the receipt of medical treatment or other medical attention in this state.

Which of course damn near every football player, hockey player or other contact sport athlete gets when that athlete sees the team doctor for some pain or ache, or worse, during a game or practice...

See where I'm going with this?

Once the specific injury is filed and jurisdiction has been implicated in California, it is not any stretch to start adding "compensable consequences" to the claim.

Indeed, this is what the Workers' Compensation Appeals Board seems to be hinting at in some recent panel opinions (though I'm sure the commissioners aren't actually saying this, but it is a reasonable interpretation).

Reginald Slater filed a claim with the Minnesota Timberwolves seeking California jurisdiction.

Slater had played professional basketball for the Denver Nuggets, Portland Trail Blazers, Dallas Mavericks, Toronto Raptors, Minnesota Timberwolves, New Jersey Nets and Atlanta Hawks from 1994–1999 and 2000-2003. He also spent two years playing basketball in Europe.

Slater was with the Minnesota Timberwolves from 2002 until 2003 and that year, he came to California four times for games.

He filed a claim for benefits in California, asserting that he had hurt a finger during a game in California while he was playing for the Denver Nuggets, and that he suffered wear and tear on his knees in the games he played for the Timberwolves in California.

Slater said he reported his knee complaints to the Timberwolves' trainer, and he was examined by the trainer while in California.

The Workers' Compensation Judge found jurisdiction under the version of LC 3600.5 in effect at the time (prior to AB 1309 amendment). On reconsideration, the WCAB said that finding was erroneous, as there was no allegation or evidence that Slater was hired in California or that he was "regularly working" in California.

But, the panel concluded that Slater could still bring his claim in California because there was "substantial evidence that (he) was injured in California" and required medical treatment within the state.

Another case, also prior to AB 1309, found jurisdiction where the contract for hire was negotiated in California even though the employer/team was out of state (this has long been the law in California regardless of whether the employee was an athlete, a sales person, executive or whatever occupation).

John Randle had been a defensive tackle for the Seattle Seahawks from 2001 through 2004.

He claimed that he played eight to 10 games in California while he was with the Seahawks, and about 15 or 16 games in California over the course of his entire career. The workers' compensation judge's determination that this was enough to establish that Randle was "regularly employed" in the state was refuted by the WCAB.

But, the WCAB panel said that California still had jurisdiction over his claim because his agent negotiated all his athletic contracts in California.

"An employment contract that is formed over the telephone is deemed a California contract of hire if it is accepted in California," the panel explained. Since Randle and his agent were in California when they agreed to the contract that Randle would later travel to Seattle to sign, the WCAB panel ruled that acceptance took place in California, ergo California jurisdiction.

So we can see how a professional athlete for an out of state employer can still get California jurisdiction: 1) medical treatment for an injury in the state and/or 2) contract of hire negotiated in the state.a

I'm sure there are many other ways to invoke jurisdiction regardless of AB 1309's restrictions.

And once jurisdiction is established the long standing rule of compensable consequence will certainly be invoked to cover other body parts - it just takes substantial medical evidence.

And if you don't understand the concept of substantial evidence (i.e. "good enough") then please read my postings on that concept as well.

Yes, since AB 1309 claims filed by professional athletes are down substantially - but that's only because the law hasn't really been figure out yet by claimant/athletes and their lawyers.

Trust me, they'll figure it out, another "crisis" will be pronounced by some special interest group of employers, and we'll have more specialty legislation that will reset the cycle.

Isn't work comp grand?

Go Forth and Compromise

One of the more controversial elements of California workers' compensation law is the requirement in litigated cases to use Qualified Medical Examiners to resolve disputed medical and disability issues (other than treatment since SB 863 came out).

In the old days the litigants would get their own doctors to say what they wanted them to say.

Often enough there would be multiple doctors opining on different medical issues due to specialization and the number of body parts allegedly injured or diseased during the employment risk.

The applicant would procure reports favorable to his or her position, the defense would do likewise, and then they would go to court and ...

... settle. Usually.

Sometimes, and not very often, cases would not settle and then a judge would determine which report would govern the case.

Remember that the evidentiary rules in workers' compensation are very lax, relying on the "substantial evidence" standard, which means that if the evidence is good enough to support what the conclusion for which it is proffered, then it is "substantial" and can be relied upon by the court.

There were two major objections to this historically revered process: 1) medical legal expenses were at least duplicated because not only did both sides have to get expert opinion that were duplicative, but there often would be repetitive diagnostics; and 2) some were rankled because of the perception that money was being given away needlessly under the veil of compromise.

Of course it didn't help that if one went before a judge to determine which medical evidence would rule the case that more often than not it was the applicant's report because, more often than not, it was substantial and judges follow the overarching rule in workers' compensation that the law is to be liberally construed in favor of the injured worker.

So the QME process was born a dozen years ago. The thought behind this was that if the parties could not agree which medical professional was going to govern the case then the government would decide, thus cutting down on litigation, ergo costs, and resulting in less dispute.

The theory didn't translate into practice and one of the more common complaints I hear as I travel the state is that the QME process a) doesn't work as intended, b) is not timely, c) doesn't have enough physicians who know what they're doing, and d) has not reduced litigation.

The Workers' Compensation Appeals Board in a recent decision known as Navarro v. City of Montebello declared invalid administrative QME Regulation 35.5(e), which says, “In the event a new injury or illness is claimed involving the same type of body part or body system and the parties are the same, or in the event either party objects to any new medical issue within the evaluator's scope of practice and clinical competence, the parties shall utilize to the extent possible the same evaluator who reported previously.”

The Board's legal reasoning was that the regulation over-interpreted the Labor Code section that mandated the QME process, and thus there was not requirement to return to the same QME for subsequent injuries.

Honestly, when I read that regulation section I don't interpret it in the same way the WCAB did - because of the last part of the sentence that qualifies it with "to the extent possible."

In my mind that means that there is no requirement or mandate that the parties go to the same QME - because it may not be "possible" to do so for a variety of reasons.

But the Division of Workers' Compensation, which issued the regulation, interpreted it differently and conservatively, that the section mandated a return to the first QME unless there was some emergency or reason why that QME could not perform - thus we got the Navarro ruling.

The DWC has capitulated by DWC saying that its medical unit will issue new panels for claims made after the initial evaluation has taken place.

I was speaking at an event earlier this week and had engaged in conversation with a defense attorney about the QME process. He opined how ridiculous the entire process has gotten because of the shortage of physicians willing to participate in the process and because of the tight regulatory framework.

He relayed to me a situation where he and the applicant attorney both struck from the QME panel list the same QME! What to do? So he called up the applicant attorney and they settled on one of the other physicians on the list.

In essence they agreed to the same QME - they compromised, and settled.

THAT's how workers' compensation should work - get through the muck of the regulatory process (mandatory requirements be damned) to get a matter resolved.

I think at least in California workers' compensation this attitude has been lost - procedure has overtaken substance and gets in the way of resolving cases.

The Navarro case may or may not be a big deal from a technical perspective, but what the WCAB is really saying is, "get over it." Procedure needs to take a step back so that the substance of a case can get through the system to some resolution.

So, to my litigating brethren out there - compromise. Settle those cases and move on. There's a lot more in the pipeline that need resolution, particularly since the latest statistics from the Workers' Compensation Insurance Rating Bureau indicate that frequency is rising...

Consult The Checklist

We were short and final for runway 22 at Catalina Island's Airport in the Sky yesterday when I decided to go around because we were too fast.

Just as I input full throttle a voice came over the radio, "check landing gear."

THAT's why we were so fast! I had failed to lower the landing gear.

How did this happen? I have 1500 hours of flight time, and over 800 of that is in Forty One Mike, and have never failed to check for landing gear deployment.

I thought about how that could have happened while relaxing with a cold one that evening in my lounge chair.

It was a WorkCompCentral director's meeting - we decided a day away from the office after all of the hustle and bustle of Comp Laude the weekend before so we could have some quiet time.

The conditions were perfect for a trip to Catalina and a Buffalo Burger - calm, clear air and modest temperatures. Wednesdays aren't too busy in the Los Angeles Class Bravo airspace and I figured Catalina wouldn't be too busy either.

The flight itself to the island was non-eventful for me, the pilot, and the passengers were thrilled with the view and stability of the flight.

Forty One Mike circled KAVX into pattern altitude for a right traffic entry to runway 22. On the downwind I sighted the touchdown zone and kept an eye on it as we turned right.

I felt for the landing gear knob and activated it, focused on the runway because Catalina is an "aircraft-style" landing - the runway sits atop a mesa with sheer cliffs on both sides, and it is steeply angled with a hump in the middle that causes a distortion from the normal cockpit view.

Forty One Mike was also heavy, with close to 800 pounds of humans aboard and only about 10 gallons of fuel burned off, so its handling was a little slow and ponderous.

And the passengers were gawking with delight.

In other words I was distracted.

As Forty One Mike was turned into final I reached to lower the last step of flaps, but it was already there - weird I thought.

I didn't think enough.

Nor did I check, as my habit and per check list, for "three green" - the three landing gear indicator lights illuminate green when the gear is fully deployed down and locked.

Normal approach speed in Forty One Mike is 80 knots with 15 inches of manifold pressure - but she wouldn't slow to less than 100 even at idle, so with about 100 feet of altitude to go to touchdown throttle went in to full power and I initiated the go-around.

All the clues were there, and yet, I almost got caught in a gear up landing.

This is a lesson we learn all the time in workers' compensation.

If things aren't the way you're expecting them to be, then they probably aren't...

In Ohio the mayor of Toledo died after an auto accident from a heart attack while in route following a snow storm press conference. The Bureau denied the claim, presumably based on the going and coming rule, but that was reversed by the Industrial Commission because substantial evidence reflected that D. Michael Collins often traveled the route home to check on road conditions. The Bureau is now seeking appellate review.

In Nevada some tweaks to the medical fee schedule for hospitals and ambulatory surgical centers should not cause more than a point four percent increase in medical costs in the state, but a study released last month by the Workers' Compensation Research Institute largely confirmed that you can't predict future behavior on past performance; reimbursement rates have a disproportionate affect on what procedures are deployed.

And in Pennsylvania a 48 year old field maintenance worker, with a long history of heavy smoking, hyperlipidemia, and family history of coronary artery disease died after working a 14 hour day in cold weather performing hard physical labor under stress. The substantial evidence standard supported the claimant widow's appeal for death benefits over the defense opinion that a heart attack was inevitable, and it just so happened to occur at work.

There are, every day, clues that should cause us to consult the check list. Things aren't what they seem. Sometimes the courts have to remind us. Sometimes history is not a good indicator of future performance.

As we were climbing out for the go-around another voice came over the radio.

"You owe that guy a beer."

"Yep" is all I could say.

Comunicación No Es Médicamente Necesario

Immigration has been the root of America's economic growth and with immigration comes diversity.

Diversity is experienced in race, religion, culture and language, among other criteria.

In the sixties diversity was defined by skin color and that ultimately spawned the Civil Rights Act to deal with the adverse consequence of diversity: discrimination.

Over the past 50 years population diversity has changed character. While discrimination is still a reprehensible reality, there have been some significant advances in race relations, religious tolerance and acceptance of sexual preferences.

One element that has always defined acceptance as an American, though, has been language.

While English is the preferred language of America, the 1980s introduced an unofficial second language - Spanish.

As immigrant rights continued to expand and be recognized, along with the huge economic market represented by the Hispanic population, governments and then businesses began interpretive communications.

Public and private signs in both English and Spanish are common place. Nearly all instructions for whatever good you might buy are in both languages (sometimes more). Governmental publications are published in English and Spanish and it seems most second generation Americans are bilingual.

There are still friction points though, and a recent Florida workers' compensation case about entitlement to bilingual treatment demonstrates the diversity of opinion on the subject.

In 2012 Jesus Trejo-Perez suffered a closed head injury when he fell 30 to 40 feet from a ladder. His employer, Arry's Roofing, accepted the injury as compensable and authorized treatment from several doctors, including Dr. Angelo Alves, a neurologist.

Alves recommended that Trejo-Perez undergo a neuropsychological evaluation for his memory, cognition and emotional state. Arry's then set an appointment with Dr. Arthur J. Forman. Since Forman did not speak Spanish, and Trejo-Perez's spoke only limited English, Arry's made an interpreter available for Trejo-Perez's office visits.

Trejo-Perez objected to this arrangement and filed a petition for benefits, seeking authorization for an evaluation by a Spanish-speaking neuropsychologist. He explained that he "didn't want to do it through an interpreter" because he didn't want to talk about the intimate details of his life through another person.

Alves supported his claim, testifying that Trejo-Perez "needs to have a neuropsychological evaluation done by a Spanish speaking-psychologist." He explained that having the evaluation done through an evaluator is "not the same," because the doctor "could get the wrong information."

The Judge of Compensation Claims wasn't persuaded. He said that, "Dr. Alves' insistence on a Spanish-speaking psychiatrist and neuropsychologist is based solely on the possibility that one 'could get the wrong information'" and this "does not equate to medical necessity."

Trejo-Perez appealed but a split panel of the First District Court of Appeals, which has original and exclusive appellate jurisdiction over workers' compensation appeals, agreed with the JCC.

The court found that while a Spanish speaking provider would be preferred, the evidence did not establish medical necessity.

In a concurring opinion Judge Makar addressed the challenges of meeting health care expectations within the limited resources of any health care delivery system.

"In an ideal world with unlimited resources," he said, "patients would have health care information published in their own primary languages, and their health care service providers would speak their primary languages." But since this ideal is "unattainable," Makar noted that "the trajectory of the language access movement in the United States currently has gravitated to the use of translators (for written communication) and interpreters."

Makar said there was no evidence as to whether use of a linguistically-compatible interpreter is incompatible with prevailing practice parameters in the provision of health care services generally or psychiatric services specifically. Likewise, the record had no evidence on whether the field of psychiatry has adopted − as a widely accepted practice − a requirement that patients are entitled to a primary language-speaking psychiatrist.

The dissent by Judge Bradford L. Thomas argued that no medical testimony supported the JCC's view that the Spanish-speaking psychiatric evaluation was NOT medically necessary, and that the JCC had failed to give any "reason" for rejecting Alves' opinion.

With regard to the dissent by Judge Thomas, it seems to me that he has the burden of proof backwards, and he also ignores the substantial evidence standard.

However, the majority opinion seems to take the position that Spanish is a "minority" language - and it isn't.

Demographic research shows that the Hispanic population has outgrown the white population in California and New Mexico, and probably a few other state, and projections are that these demographics will be reflected in the overall United States population by 2040.

California has about 14 million Hispanics out of an overall population of about 33 million, as measured by the Census Bureau, and 47% of New Mexico's population is Hispanic. While the white population is still the majority in Texas, that status is projected to change very soon as Hispanic population growth represents nearly 64% of all population growth since 2000.

In contrast, Florida has 4.5 million Hispanics, representing about 23% of the population. And since workers' compensation is state specific, relative to the overall demographic make up of Florida, the 1st DCA's ruling would make sense.

But as Bob Dylan sang 50 years ago, "the times, they are a changing."

I don't think that can be ignored.

To read the court's decision, click here.

Would You Get Married to Avoid a Deposition? A Case Study...

The rules of evidence are mysterious to most workers' compensation practitioners. The closest most come to evidentiary issues in litigated work comp cases is whether a medical report is "substantial evidence" but very rarely does a lawyer have to worry about moving an item into evidence at hearing, or worry about an evidentiary objection other than relevancy.

A recent California case reminds us, though, that the rules of evidence DO apply to workers' compensation cases, and those rules can be exploited just like any other hard and fast rule.

In Mota v. Cast Aluminum & Brass Corp. et al., No. A134157, 02/02/2012, the "spousal privilege" was deftly applied by the injured worker to prevent the defense from obtaining the deposition of a percipient witness, the claimant's girlfriend-soon-to-be-wife.

I'm sure, if you're a fan of business education, that you're familiar with the concept of just-in-time manufacturing, where processes are managed tightly to produce the most efficient manufacturing model possible. The Mota case is about just-in-time marriage.

On April 3, 2007, Ricardo Mota was caught in a conveyor belt while working for Cast Aluminum & Brass Corp., which had workers' compensation coverage from Zenith Insurance Co. He suffered multiple crush injuries to his head, neck, shoulders, low back, and right upper extremity.

Mota claimed that he began suffering from psychiatric problems and depression as a result of his physical injuries, but Cast and Zenith contended his cognitive dysfunction was caused by his past abuse of illegal drugs.

The trial judge noted that Mota freely admitted his history of narcotics use and related incarcerations in his deposition. But he said he did not remember when this occurred, and suggested that his "wife," identified as Angel P. Dodge, would know. Mota later clarified that he and Dodge were not legally married.

The defense sought to depose Dodge, but Mota's attorney objected, based on the marital privilege - even though Mota and Dodge were not married at that time.

At a hearing last September, the judge ruled that the privilege could not be raised "unless a marriage certificate can be produced before the deposition...set on Oct. 20, 2011..." If Mota produced such a certificate before that date, the judge said, a protective order was "prospectively granted" so the deposition would not proceed.

One day before the deadline, at 4:31 p.m., the defense counsel received a copy of a marriage license and certificate of marriage for the union of Mota and Dodge, dated a week prior.

The trial judge acknowledged exceptions "hav(ing) to do with causes of action between spouses," in the spousal privilege, but said there were none applicable to the case where marriage was secured just prior to scheduled testimony.

The Workers' Compensation Appeals Board rejected the defense request for reconsideration, and the 1st District Court of Appeal denied review.

This is one of those frustrating kinds of cases that, as a defendant, I would hate to see in my inventory. Five years into this case and still seeking discovery over a psyche issue. My guess, and I don't know the parties nor have I seen the case file, is that Zenith is probably correct - there is underlying psychopathology interfering with either recovery, return to work, or inflating disability.

On the other hand, perhaps it is better to admit to the psyche component and provide treatment - if it is not going to be abused by the injured worker's providers just to increase billings.

And there's the rub. Often I think it is appropriate to just provide psychological or psychiatric services to deal with non-industrial comorbidity in order to get a better outcome on the admitted industrial components of a case.

But where's the line? Is it when the payor (employer/carrier) has trust in the providers that they are doing right for the injured worker? And then how do you gain the cooperation of the injured worker, represented by counsel, and thus in an adversarial position distrustful of anything the insurance company wants to do or authorizes?

I admit that this case is a rock and a hard place for the carrier. And I also have to admire the ingenuity, and chutzpah of the injured worker and his "wife" to actually pull it off.

Mazel tov.workers compensation, work comp, injured worker

Perils of Non-Subscription

Though a lot of us have been crowing about the benefits of good non-subscriber plans, they are not without risk to the employer, some of the same issues with fair treatment and delivery of benefits still apply as in standard workers' compensation cases.

A Texas employer discovered that tough reality when the 5th District Court of Appeals at Dallas determined that the employer's alternative benefit plan wrongfully terminated its payments to a seriously injured worker less than three months after his near-fatal fall.

In B & S Welding Work Related Injury Plan v. Oliva-Barron, No. 05-13-00394-CV, Juan Pedro Oliva-Barron began working as welder for B & S in 2007, sustaining an injury in June 2009.

B&S is a Texas non-subscriber that provides its employees with a welfare benefit plan governed by and construed in accordance with the provisions of the Employee Retirement Income Security Act.

This plan paid benefits to Oliva-Barron after he had fallen from a height of more than 15 feet while working at a job site in Oklahoma City, landing in a sitting position on hardened concrete.

Oliva-Barron suffered compression fractures in his thoracic spine, as well as injuries to his wrists and right arm.

The B & S Injury Plan paid for Oliva-Barron's emergency care in Oklahoma, and for his housing and food. It also covered the cost of transportation to his home in Dallas, and for his surgery and rehabilitation.

The plan also began conducting video surveillance on Oliva-Barron.

Video showed Oliva-Barron driving a car, climbing stairs without apparent difficulty, carrying his walker and his wheelchair, pushing a child's stroller and maneuvering a shopping cart laden with groceries one-handed, while using his cell phone.

Meanwhile, Oliva-Barron had grown dissatisfied with his treating physician, complaining that he had to wait four to five hours before seeing the doctor at every appointment.

Oliva-Barron consulted an attorney in July 2009 to see about getting a new authorized treating doctor.

Just one week later, an attorney for the plan met with Oliva-Barron at the Belmont Hotel in Dallas. Oliva-Barron brought his wife to the meeting, but did not have an attorney with him.

The plan's attorney had made arrangements for Burl and Jo Anne Malicoat, the owners of B & S Welding, to be present, and a translator, since neither Oliva-Barron nor his wife could speak English.

The attorney for the plan presented Oliva-Barron with a document, written in English, that promised payment of $5,000 in exchange for a release of all of his claims against the plan and B & S. Oliva-Barron claimed he was told "things would change" if he didn't sign the form.

Oliva-Barron refused to sign the document, so the plan allegedly decreased his salary continuation benefits by 30%, without explanation and terminated his transportation services for doctor appointments.

On Sept. 18, 2009, attorney Jason January sent a letter to the plan informing it that Oliva-Barron had retained his services. That same day (11 weeks after Oliva-Barron's fall) the plan filed a lawsuit against both Oliva-Barron and his wife, accusing them of fraud, conspiracy to commit fraud and unjust enrichment.

The plan averred that Oliva-Barron had "grossly exaggerate(d)" his "purported need for medical benefits" and had "attempted to continue and increase those benefits" even though they were "no longer justified or necessary."

Even though the plan had paid no benefits to Oliva-Barron's wife, the plan contended that she had been "complicit" in assisting him "in exaggerating and creating alleged maladies and in obtaining benefits from the plan to which he is not entitled given his actual medical condition."

Nearly two weeks after the suit was filed, the plan served a notice of adverse benefit determination on Oliva-Barron and his attorney.

Oliva-Barron counterclaimed against the plan, seeking unpaid medical and indemnity benefits.

The plan sought dismissal of the counterclaims, asserting that it provided an administrative means for Oliva-Barron to appeal an adverse benefit decision and he had not exhausted this process.

Judge Ken Molberg of the 95th Judicial District Court in Dallas ruled that there was no need for Oliva-Barron to exhaust his administrative remedies.

In light of the "baseless hostility" exhibited by the plan towards Oliva-Barron, Molberg reasoned that any administrative appeal for the denial of benefits would have been futile.

Molberg then dismissed the plan's fraud claims and awarded Oliva-Barron $52,247 for unpaid medical care, $82,880 in unpaid indemnity and $177,784 in attorney fees.

The plan appealed, arguing that a trial judge shouldn't be able to "second-guess a plan administrator’s discretion when objectively verifiable facts support a reasonable basis for terminating plan benefits."

Based on a 2013 decision from the U.S. 5th Circuit Court of Appeals titled Truitt v. Unum Life Insurance Co. of America, the plan argued that ERISA plan administrators can make a benefits decision based on any "relevant information," which includes video surveillance, even in the face of conflicting evidence.

The plan also relied heavily on Truitt for the principle that it had no duty to undertake any investigation before making a benefits decision.

On appeal, the 5th District said there was no reasonable basis for the plan's benefit decision with regard to Oliva-Barron.

In Truitt, the court pointed out, there was no dispute that there was substantial evidence to support the plan administrator's decision to deny benefits. This decision also came after four years of investigation and administrative review.

By contrast, the court said, the B&S plan terminated benefits and filed suit for fraud less than three months after Oliva-Barron was injured and provided him no opportunity for administrative review.

While there may be no duty to reasonably investigate on the part of the plan, the court said, there still must be some "rational connection between the known facts and the decision or between the found facts and the evidence" to support the termination of benefits.

The 5th District said that in this case it was undisputed that Oliva-Barron had gotten hurt, and that his accident easily could have been fatal. It was also undisputed that he needed medical treatment and rehabilitation, including a back brace and a walker.

The record also indicated that all of Oliva-Barron's doctors – including his authorized treating physician – didn't expect him to be able to return to work for four to six months after his accident, and that he was progressing as expected after his injury and surgery.

None of the medical records reflect any misrepresentation by Oliva-Barron as to his physical condition, the court added.

As Oliva-Barron also was still undergoing treatment, and the estimated time for his recovery had not yet elapsed by the time the plan cut off his benefits, the court said the plan's actions were "arbitrary and capricious."

The court also said it felt there was sufficient evidence to uphold the trial judge's finding that an administrative appeal of the plan's decision would have been futile under the circumstances.

The 5th District reduced the damages award because Oliva-Barron failed to show evidence in the record as to the amounts expended for Oliva-Barron's treatment after the plan terminated his benefits, so the judgment in favor of Oliva-Barron had to be reduced to $14,102.02, to cover only his unpaid indemnity benefits and attorney fees.

The lesson? A) don't believe everything you see on video; B) ensure that mono-lingual claimants are presented documents in their native language; C) when an employer's attorney meets with a claimant, ensure that the claimant is also represented...

Oh, and when a claimant, make sure you have all of your evidence in the record to support your damages claim.