A CA Summary

Basking in the bucolic bliss of the Renaissance Indian Wells Resort & Spa attending the Public Agency Risk Managers Assoc. annual conference, it's easy to lose track of the "real world" of Sacramento.

Waking up to this morning's news, though, is a reality snap. Here's a quick summary of what legislators are attempting with California's workers' compensation system:

AB 2230, by Rep. Kansen Chu, D-San Jose, would add to the Labor Code language allowing an injured worker to choose an interpreter for medical appointments and legal proceedings. The bill would allow the employer to select an interpreter if the employee fails to do so.

Assemblywoman Lorena Gonzalez, D-San Diego, said she plans to introduce soon a measure similar to AB 305, which Gov. Jerry Brown vetoed last year, to address gender discrimination in permanent disability ratings.

SB 1175, by Sen. Tony Mendoza, D-Artesia would require medical providers to submit bills within 12 months of the date of service, or 12 months of the date of discharge for inpatient facility services. The 12-month filing deadline would also apply to bills for medical-legal services.

SB 1451, also by Mendoza, would also exempt State Compensation Insurance Fund from civil service pay limitations for certain executives and managers. The bill would limit the number of upper-level employees who are exempt from pay limitations to no more than 1% of the total number of State Fund employees. The measure would sunset Dec. 31, 2021.

Assemblyman Rocky Chavez, R-Oceanside, introduced AB 2407, which would require a provider to assess an injured worker's risk of chronic back pain and determine whether the worker meets the criteria for a surgical consultation. There is a surgical limitation in the bill but it provides that alternatives to surgery that could be ordered following an assessment including acupuncture, chiropractic care, cognitive behavioral therapy, physical therapy, yoga, massage or supervised exercise therapy. The bill would also authorize short-term use of opioids for back conditions, but prohibit long-term prescriptions of narcotic painkillers.

Assemblyman Chu of San Jose introduced AB 2577, which would establish that respiratory illnesses or diseases, including asthma, chronic obstructive pulmonary disease, chronic bronchitis, emphysema, asbestos-related lung diseases and any other condition caused by inhalation exposure from employment activities is occupational in nature.

Assemblyman Tom Daly, D-Anaheim, introduced AB 1922, would exempt policies or endorsements offering deductibles to policyholders from all or parts of benefits payable under the policy if the estimated nationwide premium is $250,000 or more, and the documents do not alter or amend the terms of coverage.

AB 2086, by Assemblyman Ken Cooley, D-Rancho Cordova, and Assemblyman Devon Mathis, R-Visalia, which would require the Division of Workers' Compensation to re-establish the qualified medical evaluator designation for neuropsychologists.

SB 897, by Sen. Richard Roth, D-Riverside, would double the amount of time certain safety workers can receive salary-continuation benefits in some cases. Police officers, sheriffs and firefighters could receive up to two years of salary-continuation pay if they suffer a "catastrophic injury."

SB 563, by Sen. Richard Pan, D-Sacramento, would prohibit any entity conducting utilization review from offering financial incentives to physicians based on the number of requests that are delayed or denied. The bill would also give the DWC authority to inspect utilization review contracts to ensure they do not include inducements to delay or deny treatment requests.

A much more comprehensive review of these pending bills is in this morning's WorkCompCentral News:
https://www.workcompcentral.com/news/story/id/188670b700c34267cce8f27f41bfc1cd80646de5.

No Second Hand Remedy

Exclusive remedy has been under attack, critics say, putting the doctrine and employers at risk as avenues for civil action erode one of the basic elements of workers' compensation - except in California, where another case affirms the sanctity of the concept.

Cynthia Medina worked as a nurse at the Yountville Veterans Home of California for 20 years, between 1990 and 2010.

Medina claimed she encountered second-hand smoke for approximately 30 to 45 minutes per day at the facility because residents were allowed to smoke anywhere on the premises, and she claimed they would "intentionally blow smoke" at her while medications were administered.

Medina was diagnosed with lung cancer in February 2011. She immediately had surgery to remove a portion of her right lung.

Medina filed a claim, pursuant to law, with the state's Victim Compensation and Government Claims Board in March 2013, giving notice she held the state liable for $10 million for causing her cancer.

The board denied her claim as untimely - the Government Code sets a six month deadline for filing suit for damages against a public entity.

Medina then petitioned the superior court for leave to bring her suit despite its untimeliness. The state did not oppose her petition and the trial judge granted leave to sue.

Medina subsequently filed a personal injury complaint. She asserted claims for battery, assault, premises liability, negligence and violation of Labor Code Section 6404.5(d)(12), which addresses employers' obligations regarding workplace smoke exposure.

The state demurred, raising defenses of timeliness and exclusive remedy.

The trial judge sustained the demurrer.

The 1st District Court of Appeals, on Medina's petition for review, said her claim was untimely, but more important to us, said the exclusive remedy of workers' compensation bars the suit.

"There can be little question Medina was performing her job and acting within the course of her employment when administering medications to veterans," the court said. "Nor can there be any doubt that she claims her injury was caused by being exposed to cigarette smoke while she was on the job."

California's courts have treated workplace safety injuries as giving rise to workers' compensation claims, the court said, not private lawsuits, even when those injuries are not directly related to, or a normal part of, the type of work being performed.

To read the decision, click here.

Ebola and Work Comp

What if the ebola virus is industrially acquired? Working abroad, or health worker infected...

The general media yesterday ran headlines about an adult who recently traveled from West Africa to Texas and tested positive for Ebola, the first case to be diagnosed in the U.S.

According to the reports, the man developed symptoms of the viral disease about four days after landing in Texas and was admitted into isolation on Sunday at Texas Health Presbyterian Hospital in Dallas.

The Centers for Disease Control and Prevention in Atlanta confirmed that the patient had tested positive for Ebola and said "a handful" of people may have been exposed. They also reiterated that the disease could be contained with standard public health efforts and said the patient can be treated safely at the Dallas hospital.

Also in the Wall Street Journal yesterday was a story about the spreading of disease and germs in the work place.

Regardless of your sanitation habits at work, it's pretty hard to avoid the germs of your co-workers, even the ones you don't know personally.

Just one door contaminated with a virus spreads the germ to about half the surfaces and hands of about half the employees in the office within four hours, according to a study at the University of Arizona, in Tucson. 

Bowzer may be infectious...

The research was presented at the Interscience Conference on Antimicrobial Agents and Chemotherapy in Washington D.C. earlier this month.

According to the article, researchers calculated that employees had a 30% chance of infection just being in the work place.

Albeit most of the time an infectious disease in the work place doesn't have any real consequence - flu bug or common cold, these diseases don't arise to industrial significance at least for workers' compensation.

But what if that infectious disease is ebola? The report of the Texas man transporting the disease to the U.S. demonstrates the portability of disease, and the transmission of it can occur quite easily, as demonstrated by the Arizona researchers, in the work place without detection until it could be too late.

California Governor Jerry Brown yesterday vetoed a couple of presumption bills put on his desk, one of which would have granted a presumption to certain health care workers that contract methicillin-resistant Staphylococcus aureus infections.

The bill, AB 2616, was sponsored by Nancy Skinner, D-Berkeley, and is the third attempt to create the presumption, but the first time it got to the governor's desk. It also would have been the first time any industrial disease presumption would have extended into the private work place.

In general I'm opposed to presumptions. I think they do more harm than good, create more animosity between employee and business, generate more litigation and medical discovery than not, and in general are bad policy.

We have seen over time now public safety employee presumptions grow outside of intentions - on Monday I blogged on a Los Angeles Times report about first responders taking advantage of salary continuation benefits for reportedly minor issues - and presumptions follow the same discourse.

The argument for the presumptions is that proving industrial causation of disease is inordinately difficult for the employee, and I get that.

But the reason for the public safety presumptions was to encourage people to seek careers in that sector and not be afraid that some disease was going to ruin their lives serving the public.

There isn't any evidence that the possibility of contracting MSRP inhibits potential health worker employment opportunities.

There apparently is evidence of health workers being harassed and otherwise intimidated in their quest to get benefits to cover treatment and disability associated with MSRP, and Brown has directed officials to look into this - perhaps that is what is needed for the nurses to get their presumption.

Here's what it really all comes down to - workers' compensation, like pretty much everything in life, has limitations and borders. Some of those limits are easily defined, and clearly denoted. Some are fuzzy and create more controversy and discourse than others.

At some point lines are drawn; not necessarily to discriminate against any particular sector or occupation, but simply because a line has to be drawn so that people affected or functioning within a system know what to do.

With communicable disease, where infection can as easily occur in the work place as not, there is nearly always going to be disagreement on causation and employer liability.

In the end the question is what does society want workers' compensation to be?

Does society want work comp to be more of a universal health and disability program that covers anyone for anything as long as they have a job? And society is willing to pay for it?

Or does society want a more circumspect system that covers only the obviously employment related injuries and illnesses, and put the burden of covering the fuzzy cases onto the general health system?

This is an age-old debate, one that will likely carry on for many, many years, particularly as the country wrestles with the ongoing implementation and coverage of the Affordable Care Act and its many permutations.

New Bills, Same Dangers

Political machinations create the complexity we know as workers' compensation law.

California is the prime example, with several bills moving around the legislature that bestow special treatment to certain classes of workers.

One bill, Assembly Bill 1035 by House Speaker John A. Pérez, D-Los Angeles, would allow dependents to file claims for deaths caused by cancer, tuberculosis, methicillin-resistant Staphylococcus aureus infections and other bloodborne infectious diseases up to 420 weeks from the date the disease is diagnosed.

Similar bills in the past had made it through the legislature but Gov. Jerry Brown had vetoed them ostensibly because he was waiting for reports from the National Institute for Occupational Safety and Health and the California Commission on Health Safety and Workers' Compensation.

AB 1373, which passed in 2013 and AB 2451, which passed in 2012 differed in that both extended the limitations period to 480 weeks.

And the new bill includes a sunset provision that would allow the governor and Legislature to revisit the appropriateness of the new time frame in five years.

Supporters say AB 1035 is necessary because with advances in medical science, safety officers who develop cancer and other diseases through their employment are living longer.

The emotional appeal is that these brave public servants fight for their lives, only to succumb to the disease after the death benefits limitation period expires so dependents can not collect the benefits.

Of course that same argument could be made for any worker who contracts the same diseases covered in AB 1035 - but they're not of the class of employees with the lobbying power before the legislature.

The NIOSH study published last year found that firefighters are at an increased risk for developing certain types of cancer.

A report submitted to CHSWC in March estimated extending the deadline to 480 weeks (as proposed in the original prior two bills) would cost the state and local governments about $4.75 million.

While the usual arguments are being made about cost increases and necessity for the bill, the real concern in my mind is unintended consequences, particularly if a couple of other bills pass.

The Assembly Insurance Committee voted 8-3 to pass AB 2052 on April 2, which would extend the presumption that heart trouble, cancer, hernias and other conditions are compensable to anyone who meets the statutory definition of “peace officer” under six sections of the Penal Code. The bill would apply to school district and college police, railroad and transit safety officers, park rangers, welfare fraud investigators, utility security officers and coroners.

SB 1234, Sen. Marty Block, D-San Diego, would authorize one year of salary continuation benefits under Labor Code Section 4850 for the same safety workers who would be made eligible for the presumption by AB 2052.

After the Senate Labor and Industrial Relations Committee had unanimously passed SB 1234 by Sen. Marty Block, D-San Diego, on March 26 the bill was placed on the Senate Appropriations Committee suspense file Monday, a holding spot for measures that are expected to cost the state at least $50,000.

And AB 2378 by Fresno Democrat Henry Perea, chairman of the Assembly Insurance Committee, would declare that any benefits paid under Labor Code Section 4850 do not count against the two-year cap for collecting temporary disability benefits.

Unrelated to public safety officers, but nevertheless an example of the political pressure put on workers' compensation, the nurse's presumption of injury is back.

Berkeley Democrat Nancy Skinner has amended Assembly Bill 2616 to propose language that is identical to a measure she introduced in 2012 and also similar to what she proposed in 2011that would create a rebuttable presumption that methicillin-resistant Staphylococcus aureus is an occupational injury for hospital workers who provide direct patient care.

An MRSA infection that develops while a person is working at an acute care hospital or that develops within 60 days following termination would be presumed to arise out of and in the course of employment under the bill. The presumption could be rebutted by other evidence.

I've been critical of the nurse's presumption in the past and I still don't believe it is necessary.

Public safety presumptions have been a part of the law for a very long time, and the extension of the death benefit statute of limitations probably won't have that big of an impact overall on the operational expenses of public safety departments.

But, as I have said in the past, "in the world of litigation, the limits of applying a presumption are restricted only by the imagination and creativity of the lawyers articulating an interpretation that may, or may not, have been considered by the legislature."

THAT's why we end up with unintended consequences!

Benefits Due When Due

In an unusual case, the Ohio 10th District Court of Appeals ruled on Monday that the family of a long-time plastics factory worker was entitled to an award for the loss of use of his arms and legs in the days leading up to his death, even though the medical evidence indicated that he was comatose and not aware of his paralysis, and his family didn't submit a claim for loss of use until after he died.

In State ex. Rel PolyOne Corp. v. Industrial Commission, Glenn Evans was employed for many years as a laborer for the PolyOne Corp. and its predecessor company. PolyOne makes specialized polymer products.

Before he retired in 1994, Evans was exposed to vinyl chloride – a colorless flammable gas used to make plastic and vinyl products. The U.S. Environmental Protection Agency recognizes it as a highly toxic and carcinogenic compound.

In 2010, doctors diagnosed Evans with hepatic angiosarcoma. This is a very rare malignancy with a poor prognosis, according to the Oxford Journals Annals of Oncology. Vinyl chloride exposure is widely acknowledged as a cause of the disease.

Evans filed a workers' compensation claim in October 2010 based on his cancer diagnosis. PolyOne, a self-insured employer, certified his claim.

After his diagnosis, Evans' health quickly deteriorated. On July 4, 2011, orthopedic surgeon Matthew E. Levy examined Evans at his home. Levy noted that Evans had no functional or volitional use of either of his arms or legs. He also did not respond to verbal or visual stimuli.

Evans died four days later, at the age of 74.

He was survived by his wife of 56 years, son, daughter and five grandchildren.

Evans' wife submitted a claim for death benefits and scheduled loss compensation for her husband's loss of use of his arms, legs, hearing and sight prior to his death.

A district hearing officer determined that Evans' family was entitled to death benefits, but denied the family's claim for a loss-of-use award.

A staff hearing officer vacated the DHO's ruling, finding that Evans had indeed suffered the total loss of use of his arms and legs prior to his death, ruling they were the direct result of Evans' angiosarcoma and that Evans' comatose condition was not a bar to scheduled losses.

The SHO also ruled that there was no persuasive medical evidence to suggest that these losses were temporary or transient in nature, the family was entitled to 850 weeks of compensation at the scheduled rate of $775 per week (a grand total of $658,750).

PolyOne took the case to another SHO, lost, and after the Industrial Commission of Ohio unanimously denied PolyOne's request for reconsideration, appealed to the 10th District Court of Appeals. The magistrate to the 10th District recommended PolyOne's request for a writ be denied and the court adopted that position.

Death benefits are intended to compensate a worker's dependents for the loss of support resulting from the employee's death, while loss-of-use awards are comparable to an award of damages in a tort case and have nothing to do with impairment of earning capacity, said the court.

It also reasoned that because Evans would have been entitled to apply for a scheduled-loss award at the time of his death, his dependents were entitled to apply for the benefits to which he was entitled.

As long as the worker would have been entitled to an award for the loss of use of his extremities before his death, his dependents can make the claim on his behalf after his death and receive the award that would have been due to him, the court said.

Equity Has No Place In Presumptions

I've blogged before that presumptions in workers' compensation tend to prolong litigation and make for bad precedence, and a recent California case highlights that concern.

The First District Court of Appeals in California will decide whether a municipal employer had successfully rebutted the presumption of industrial causation for a novice police officer's colon cancer in light of evidence that the disease takes decades to develop.

In City of Paso Robles v. WCAB (Bigelow), No. A140531, the workers' compensation judge found that Daniel H. Bigelow's workplace exposure to known carcinogens was not reasonably linked to his cancer, since the panel Qualified Medical Evaluator said the latency period for colon cancer is longer than the four years that Bigelow had been on the City of Paso Robles police force.

Bigelow joined the police academy in Nov. 2005, and he was diagnosed with cancer just over six years later, in 2011.

The QME opined that it was likely that Bigelow had been exposed to benzine, a known carcinogen, during his time as a police officer. However the QME said there is no causal link between exposure to benzine, or any other known carcinogen, and the development of colon cancer. 

The doctor further testified that cancers in general have a latency period of between 15 to 20 years, and since Bigelow's employment with the City of Paso Robles did not fall within the latency period, Levine said he felt it was medically improbable that there was a relationship between this employment and Bigelow's cancer.

Since Bigelow had relied solely upon the presumption to establish causation, the WCJ ruled that he had not established his entitlement to benefits and ordered that he take nothing on his claim.

The Workers' Compensation Appeals Board disagreed and a unanimous panel rescinded the judge's findings on causation last November.

"[T]he mere absence of a study showing a link between exposure to carcinogens and the development of a certain type of cancer does not rebut the Section 3212.1 presumption of industrial causation," the WCAB panel opinion said.

The WCAB said that the Section 3212.1 presumption "may be rebutted by substantial medical evidence that proves that the latency period for the specific cancer at issue excludes industrial exposure to carcinogens as its cause," but since the QME admitted there are no studies showing a specific latency period for colon cancer, his testimony about the average latency periods for other types of cancer could not rebut the presumption of causation. 

The City appealed.

Labor Code Section 3212.1 provides fire and police personnel who develop cancer during the course of their career a presumption of compensability if they can show they were exposed to a known carcinogen while working.

An employer can rebut the presumption with evidence that the primary cause of the cancer was not the workplace and that the carcinogen to which the officer or firefighter has demonstrated exposure was not reasonably linked to the cancer.

In other words the employer needs to prove a negative - that an exposure in the work place doesn't result in cancer.

It is nearly impossible to prove that there is no cancerous exposure in the work place because nearly everything in life produces some cancerous exposure - just breathing the air in an automobile is a cancerous exposure, particularly if you drive frequently in congested traffic, or purchase a new car with that nice, plastic "new car" smell in ignorant bliss of the fact that smell is produced by the huge amount of hydro-carbon emissions from all of the interior plastics...

And, in many cases, the claimant's previous employers will fight among themselves about when the cancer developed as they seek to spread the cost of (or avoid entirely) liability for the claim.

The argument in favor of presumptions is that they reduce litigation by providing a directive regardless of the defenses.

But as we have seen time and time again, presumptions tend to exacerbate litigation, and all the while there is the injured worker trying to figure out who is going to pay for his cancer treatment, how the bills are going to be paid while he is not working, and dealing with the major life decisions confronting someone's mortality reality.

The only way to make a presumption truly a presumption is to make it conclusive - i.e. not rebuttable.

Employers won't buy that however because even though workers' compensation is a "no fault" system, responsibility is inherently a fault finding concept and who or what is responsible will drive nearly any rational person to explore some way of deflecting fault.

And what we end up with is what we would end up with if there was no presumption in the first place: an employee seeking a remedy for his or her malady and an employer seeking exculpation or at least deference of liability and payment.

The 1st DCA in this case may help provide more certainty in cancer presumption cases by drawing the clear line - if there is a 3201.1 claim then either there is conclusive evidence that the cancer was not caused by employment, or there isn't.

If the evidence isn't conclusive then the presumption stays.

Period.

That will clear the ambiguity of the cancer presumption. An employer may not feel it isn't fair or equitable - certainly the City of Paso Robles would have that feeling given that the claimant in this case worked there only 6 years.

But workers' compensation isn't about being fair. It's about 1) workers (with an apostrophe denoting the plural possessive) and 2) compensation (encompassing payment for medical care and indemnity).

There is nothing in that equation that talks about fair, just, equal or any other concept of equity.

Trucks, WBV and Cancer

You just never know what the next big risk category is going to be in workers' compensation.

I had been persuaded by an argument offered by Charlie Kingdollar, Vice President emerging issues unit for General Re Corp., that nanomaterials would be the next asbestos.

OSHA has been particularly concerned with silica in the past couple of years.

The more recent concern trends have been obesity (in particular now that the American Medical Association suggests that it is a disease), opioids, and a little bit earlier it seems the claims trends were carpal tunnel syndrome and fibromyalgia.

Hearing loss seems to crop up from time to time, though not as an ongoing trend since that process is easily remedied through safe practices.

But it's more often than not something much less spectacular that really drives frequency and severity in simultaneous fashion, and a 2012 study published in the Annals of Occupational Hygiene may have identified "the next big thing:"

Prostate cancer in truck drivers.

There seem to be two competing theories: 1) long-term exposure to the kind of “whole-body vibration” experienced by truck drivers and other heavy equipment operators prompts the body to produce more testosterone, which is a known risk factor for prostate cancer; 2) the vibration can lead to prostatitis, or inflammation of the prostate gland, which may also be linked to prostate cancer.

The researchers found that those who drove a truck more than doing anything else were nearly four times more likely than educators to be diagnosed with a prostate cancer considered highly aggressive. (Educators were used as the baseline group because they were deemed to have very little to no exposure to whole-body vibration.)

Obviously truck driving isn't the only occupation that can induce "whole-body vibration" but it had the strongest link according to the study.

So does this mean that we can expect to start seeing profuse amounts of claims for prostate cancer coming in to workers' compensation? Perhaps.

The science of the study will be challenged. The application of the science to the individual claimant still needs the support of a reporting physician who has reviewed such studies and has some oncological expertise. And many states don't recognize occupational disease theories.

Still, sometimes the most innocuous sounding research leads to some significant shifts in the distribution medical care and indemnity.

Pennsylvania is already dealing with an epidemic of prostate cancer among its firefighters.

The National Institute for Occupational Safety and Health has adopted a final rule that adds prostate cancer to the list of more than 50 cancers that are compensable under the James Zadroga 911 Health and Compensation Act of 2010.

Carnac The Magnificent I am not, but I would not be surprised to see more prostate cancer cases going through the work comp system in the next five years or so, first from truckers, then other occupations that can prove up WBV.

Whether this turns into a trend remains to be seen. Cancer is one of our most prolific diseases and the cost of treatment and attendant social costs are enormous, so it would make sense that there is going to be some shift in ultimate financial responsibility.