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California's 2nd District Court of Appeal this week issued an unpublished ruling ("unpublished" is a technical legal reference meaning that the opinion can not be cited in other cases as precedence) that is one of those cases.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

Colorado Balance

The intricacies of workers' compensation law are illogical to many, because work comp is not a logical system - it is a contrivance of fantasies designed to resolve a problem - people and families left without remedy following a work accident, and spreading that small risk (frequency rate is at an all time low - except for in the Greater Los Angeles area of course) to the business community so no single employer is disproportionately affected.

And because each state has its own political wind shaping its workers' compensation program, there are disparities that even the courts acknowledge are nonsensical, but are nevertheless the law.

The Colorado Court of Appeals last week presented a prime demonstration of this last week, ruling that the family of a deceased worker who had already collected benefits from Mississippi could also get Colorado benefits, and the carrier was entitled only to a 50% offset pursuant to Colorado law, but that interest on the award would be based on the Mississippi half, not the Colorado award.

John Eric Keel, a Mississippi resident, started working for TTS, a rail shipping logistics and engineering company, in March 2010. After seven months, TTS offered him a job in Colorado that paid substantially more.

Keel agreed to the transfer, but he was killed the day after he arrived in Pueblo while overseeing the loading of a wind farm tower onto a railcar.

The 21-year-old left behind a wife and young son.

After Keel's death, TTS' carrier, Ace American Insurance Company, began paying benefits to his family under the Mississippi workers' compensation system at a rate of $337.58 per week.

Two years after Keel's death, his family filed a claim for benefits in Colorado.

An administrative law judge determined that Keel's death was compensable under Colorado law, and that Ace owed benefits in accordance with Colorado's Workers' Compensation Act.

Under Colorado's comp system, Keel's widow and young son were entitled to weekly death benefits of $810.67. However, this amount was subject to a Social Security offset of $190.38, leaving Ace's future obligation to Keel's family at $620.29 per week.

Since the amount of benefits payable in Colorado was higher than the amount Ace paid Keel's family under Mississippi law, the carrier conceded that it owed the family additional compensation.

Ace calculated the amount of benefits due to the family for this 148-week period under Colorado law as $91,902.92. It then subtracted the Social Security offset and took a credit of $24,980.92 – representing one half of the amount the company had paid in death benefits under the Mississippi comp system. This left $66,822 as the amount owed to Keel's family.

Ace made payment of this sum to the family, plus $2,040.32 in interest, and the family objected to the calculation of interest.

Ace arrived at the $2,040.32 sum by subtracting the $49,961.84 in Mississippi payments from the $66,822 owed in Colorado benefits. It used the difference of $16,860.16 to when calculating interest at 8%.

An administrative law judge found the calculation of interest was appropriate, but the ICAO reversed.

The ICAO said Keel's family should not have been allowed to recover the Colorado past due death benefits that the employer paid, but since that was not an issue before it, ICAO concluded that Ace owed interest on $41,841.08.

It arrived at this sum by taking the amount of benefits due to the family under Colorado law for the 148-week period – $91,902.92 – and subtracting the Social Security offset and the full amount of the benefits the family had received under the Mississippi system.

The Court of Appeals said this was an error, because Colorado Revised Statutes Section 8-42-114 was applicable, and it limited the credit Ace could take to 50% of the benefits paid under the Mississippi comp system.

The court noted that Section 8-42-114 expressly applies when death benefits under a workers' compensation act of another state "are payable to an individual and the individual's dependents."

As benefits were paid to Keel's family under the Mississippi comp system, the court said that Section 8-42-114 came into play.

The court acknowledged that Keel's family had benefitted by filing a comp claim in Mississippi prior to Colorado because Mississippi law would have required the death benefit payments to be offset by 100% of the Colorado death benefits if the claims had been filed in reverse order.

But hey, that's the law and how it's supposed to apply. 

Besides, the probability of this occurring on a regular basis is very small, or as one commentator put it to WorkCompCentral legal reporter, Sherri Okamoto, the Keel case is an "unusual factual situation."

One other poignant observation: where a claim resides makes a huge difference in the amount of benefits, the premise of the original ProPublica story, "Insult to Injury."

The case is Misty Keel vs. Industrial Claim Appeals Office, 2016 COA 08. No. 15CA0466.

Back Into Perspective

Adam started fueling my plane less than 6 months ago.

perspective

30 years old, seven years in the Army, two tours in Iraq, married, seven month old daughter, going to college to complete his Bachelors, and working part time at the local Fixed Based Operator keeping airplanes washed  and fueled to make ends meet.

He would listen to tower frequency and when he heard me coming in for a landing he'd fire up the fuel truck and meet me at my hangar - I never had to call for fuel when Adam was on duty.

He told his supervisor that he liked fueling Forty One Mike because I was "nice."

It was curious when his supervisor drove the fueling truck to meet me Friday after returning from Vegas. She said Adam was "no longer with us."

I thought he had quit or was fired. My facial expression conveyed that.

"No, I mean, Adam died..."

I was floored. I just saw him - he fueled Forty One Mike on Tuesday for my Vegas departure.

He left work at 3:30, said his supervisor, went home to get his motorcycle, and was killed when the driver of an SUV made a left hand turn directly into the path of Adam. There was no room or time to maneuver. Adam died instantly.

That I was "nice" made the news particularly biting.

Alison was my college girlfriend for a couple of years. We stayed in touch after that relationship ended. She went through a couple of husbands, and had a son and daughter.

The last couple of years I did not have much communication with her. She told me she was writing a novel, and that a character in her story was based on me. I thought that was flattering.

I knew she was sick, and guessed it was cancer.

I saw some photos of her on Facebook - she did not look healthy, or happy.

After about a year of battling brain cancer she died about two weeks ago at age 56.

Woody was in the Army. At 24, he was the only child of my cousin, police officer Joey. I got the text message Saturday.

He was found, unresponsive, in his barracks after a night of drinking with his buddies. CPR failed.

And of course the Paris ISIS attacks removed from this existence 129 people who had no inkling their time was up. One was a 23 year old Long Beach State college student finishing up her senior year with studies abroad.

Nohemi Gonzalez won't graduate.

I think about workers' compensation all the time. It seems big. There are billions of dollars involved. There are tens of millions of people impacted. Goods and services reflect the cost of this social program. People get hurt. People get medical care. Some get denied. Some people get money for disability. Some go back to work, others don't. Some people cheat. Some get cheated.

Some people die.

And every once in a while, it all gets put back into perspective.

Profit Before People

I wrote yesterday about reality and perception, yet we, the industry, continue to be our own worst enemies creating negative realities to match the negative perceptions.

The industry got a bee in its collective bonnet when ProPublica and OSHA issued reports and stories with anecdotes about how the workers' compensation system failed injured workers.

Countless injured workers who have dared to speak out publicly via forums, blogs, social media, television, radio and other media outlets, are castigated and marginalized by the industry as wacky complainers who don't have a life so they focus on claims.

Poor Bowser...

Industry insiders are afraid to blow the whistle for fear of retribution, or worse.

Attorneys representing injured workers are vilified for taking advantage of the system's alleged "no fault" design to erode the protections afforded employers.

Our own governmental agencies tout statistics reflecting decreased claim frequency and severity, lowered medical costs, but improved outcomes, but anecdotes keep appearing challenging the rosy stats.

But, as we see in Kelly Tinsley vs. Vertis Communications; ACE USA/ESIS, the system is NOT balanced, is greatly skewed against injured workers and without representation people would die, victims of The System.

Tinsley had an admitted industrial injury to his neck, spine, neurogenic bowel, neurogenic bladder, internal organs and psyche employer as a machinist arising out of an incomplete C6 spinal cord injury on January 10, 2010.

After being hospitalized, Tinsley was released home, and started having active suicidal ideations. He began treatment with Dr. David Patterson through the Casa Colina Transitional Living Center Residential Program Post-Acute Physical Rehabilitation with One on One Supervision (whew!)

He attempted suicide on 8/31/2011 by carbon monoxide poisoning. When he failed to show for an appointment a friend checked on him and found him lying on the garage floor. He was airlifted to a hospital, and after three days of inpatient care was released home and thereafter admitted back to Casa Colina on 9/2/2011.

Eventually Tinsley was seen by a Panel Qualified Medical Examiner who opined that Tinsley's active suicidal ideation was real, was a problem, and that he should not be released back to the care of a family member because the suicide hazards could not be managed properly.

The claims adjuster requested that the Requests for Authorization for Casa Colina be submitted one month at a time. Dr. Patterson complied.

According to the Workers' Compensation Judge's report on reconsideration, "There was no conflict or disagreement between the applicant's primary treating physician, Dr. David Patterson and the Panel QME, Dr. Greils as to the reasonableness of the treatment prescribed and provided."

For whatever reason, the claims adjuster (who had been on the case from the outset according to the WCAB opinion) decided to submit the 9/28/2014 RFA to utilization review, without any of Dr. Greil's medical reports, his depositions, or the deposition of Dr. Patterson.

As you might guess, UR denied the treatment, and the claims adjuster stopped paying Casa Colina.

"The court found the failure of ESIS to send the relevant medical reports and depositions to the doctor performing the Utilization Review to be troubling. There are few cases where the issues of life and death are truly before us. This is one of those rare cases. In the 10/7/2014 Utilization Review, Dr. O'Brien refers to the Medical Treatment Utilization Schedule [MTUS] for neck and upper back complaints and treatment for chronic pain. Dr. O'Brien does not address the fact that the basis for the recommended one on one care is due to the opinion of his treating and evaluating physicians that he will kill himself if this care is not provided.
...

"Mr. Tinsley therefore continues to be a resident at Casa Colina although it is represented it was about to discharge him due to non-payment of his treatment provided since October 2014. No doctor has been able to find a better alternative..."

When ESIS stopped payting Casa Colina, treatment was paid through Tinsley's own funds.

The issue that really brought this case to the WCJ was not the egregious behavior of the claims adjuster and ESIS, but that they couldn't even follow The Law with respect to service and timeliness.

Listen, the law and regulations are SO stacked in favor of the payer community right now, a failure in procedure is inexcusable. If you can't get it right, then don't try...

"The WCJ correctly found that the UR was invalid because defendant did not show that it was timely communicated to Dr. Patterson...," the Board wrote. "The WCJ also properly relied upon the holding in Dubon II to award the treatment at issue because it s reasonable and supported by substantial medical evidence."

The failure in compassion and humanity in this case is beyond inexcusable and, frankly, nearly criminal.

The Board chastised ESIS and the claims adjuster for not even being able to follow procedures (procedures that were fomented mostly by the defense community in recent reforms) and then still trying to claim a defense against DOING THE RIGHT THING.
In a separate concurrence, Commissioner Sweeney hit upon the real issue: "However, it is important to note that there is no evidence in the record of any change in applicant's condition or circumstance that reasonably supports the initiation of UR to evaluate the ongoing treatment as (sic) Casa Colina that had been routinely approved and successfully provided for several years."

And, had the case been Commisioner Sweeney's to adjudge herself, she would have thrown the proverbial book at the defendants, "In this case, there is no evidence that defendant made any effort to reach an agreement on a care plan with applicant's treating physician before it terminated payments to Casa Colina. The absence of an agreed care plan to address the consequences of discontinuing inpatient care at Casa Colina as part of the UR could be considered a neglect or refusal to provide reasonable medical treatment [citations]."

Perception derived from reality: too often it seems the claims community would rather an injured worker DIE instead of paying for a lifetime of treatment because it is cheaper - the mighty dollar is, indeed, more important than human life in Corporate America.

The only logical conclusion I can draw is that the payer would rather Tinsley kill himself instead of having to deal with this claim, and its expense (reportedly $40,000 per month), for the rest of his, frankly, miserable life.

Does work comp have a bad image? You bet. This case demonstrates why. And frankly that image is deserved when this kind of behavior occurs.

I hope applicant's attorney takes the defendants to the cleaners on this case, and moreover, I hope that the emasculated Audit Unit imposes the harshest of the now castrated penalties on the payer.

Not that it will teach anyone a lesson.

You know why this world needs lawyers? Because there are still way too many who put profit before people.

My team at WorkCompCentral work really hard to highlight the good in workers' compensation.

Cases like this make communicating that message difficult.

A copy of the Opinion and Order Denying Defendant's Petition for Reconsideration is here.

*************

Post script from the applicant's attorney, Keith More:

Awesome - thank you for  understanding the plight of the injured worker. Timeliness,  REALLY !!!  That is the only way I could get this to the Judge. Not the simple fact that the Labor Code and Rules and Regs REQUIRES the appropriate medical records be reviewed by a UR physician within the same specialty or area of practice. This is why Dubon II must be overturned. The WCAB found it "troubling" that the PQME report was not submitted for review or why the 2 volumes of the PQME's depositions were not sent by the adjuster for review, What about the FACT that the UR doctor chosen by Ace/Esis this time, was an internist who does not have an outside office and does not see patients for treatment purposes. Mr. Tinsley did not have an internal issue. Why and how could anyone in compliance with the law choose an INTERNIST for this review. It's not like the adjuster had not seen this request 28 days before. It's not like the adjuster did not see the same request 28 days before that. None of the other requests had been sent to an INTERNIST. 

The request for medical care was not for chronic pain (the basis for the denial). Troubling is the best they, the WCAB could do since they overturned Dubon I. It's not troubling it's alarming. It's abusive. It's punitive. This system is called "Worker's Compensation" not "Insurance Profits"! Ace/Esis through its adjuster Cheryl Brownlee who we personally served to appear at trial has already told Casa Colina they will appeal the Decision. 

Why not? Well, the WCAB while using strong language failed to issue sanctions on its own for the "troubling" behavior. "Every life is worth saving", a brave firefighter said after 9/11. Why not Kelly Tinsley, a 27 year dedicated employee of Vertis who was severely injured on the job.  

Worse Than Fraud

Unless one lives in Bangladesh, going to jail for killing a worker is rare.

Very rare.

But when an employer is so egregious with work safety and shows an overall disdain for the law, let alone worker safety, then sending them to jail is the least society should do.

The California Division of Occupational Safety and Health pursued criminal charges, and succeeded, against Richard Liu, the owner of U.S.-Sino Investment, and Project Manager Dan Luo to two years in prison for involuntary manslaughter for the death of Raul Zapata Mercado.

According to a press release from the California Department of Industrial Relations, Mercado was crushed to death after a retaining wall collapsed on him at a worksite U.S.-Sino Investment was running in Milpitas.

A Milpitas city building inspector had issued a stop-work order on the project, but the contractor didn't stop work. Mercado was installing the foundation for a retaining wall on Jan. 28, 2012. The 12-foot-high wall collapsed on him, killing him before responders had a chance to dig him out.

In addition the scofflaws didn't have workers' compensation insurance, and safety inspectors found that neither Mercado nor any of the other employees were wearing head protection, had failed to shore up the wall to prevent it from collapsing and didn't have a competent supervisor to ensure that the wall was being installed according to safety regulations.

The company did not have an excavation permit as required for any work performed in a trench that is 5 feet or deeper, according to the District Attorney’s Office.

The company was also fined $168,175 - a mere pittance in my opinion compared to the harm caused by their criminal behavior to the Mercado family. The case was originally handed to the District Attorney's office after a grand jury indictment in 2014.

Sometimes it's not the act that caused the death that results in employer jail time.

In June a Meadowbrook, Pennsylvania, roofing contractor was charged with lying to OSHA inspectors who came to one of his work sites following the death of a worker in 2013. The worker died after falling 45 feet from a bracket scaffold at a church, and the resulting inspection led to penalties for failing to provide fall protection.

James McCullagh allegedly attempted to cover up the lack of fall protection at the work site by falsely telling OSHA inspectors that he had provided harnesses and other safety devices for the crew. The U.S. attorney is also alleging that McCullagh directed his employees to back his story up when speaking with the inspectors.

The case is pending. McCullagh faces up to 25 years in prison and $1.5 million in fines.

In my mind, if lying about a work injury deserves jail time, then people that knowingly, and intentionally, put their workers at risk, and then lie about it, should have the proverbial book thrown at them.

Because that conduct is worse than fraud.