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.

Dog Day Discomfort

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

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

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

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

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

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

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

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

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

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

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

West Coast fired Polanco for yelling at his supervisors.

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

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

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

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

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

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

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

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

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

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

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

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

But the WCAB got this case wrong.

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

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

Fly The Claim

Four One Mike over the LA basin managing risk...

Heading back to California today from the 70th annual WCI Educational Conference in Florida, it's been a week since Bonanza Six Six Four One Mike has been in the air and it's been 8 days since I checked up on Mom.

Last week Mom was still dealing with a bit of pneumonia in the lower left lobe of her lung. She was happy as she normally is, and even referred to me accurately as her son (normally she gets this confused and I've been called grandson, nephew, husband, cousin ... everything but her son).

But Mom still had a bit of a cough, and still required oxygen because her O2 uptake without the supplement was in the low 80s.

My brother had stopped by a few days ago to install new safety cords to her hearing aids because the original installation had broken. He reported an otherwise "normal" Mom.

And of course, Four One Mike hasn't been in the air since then. I know she'll need a half quart of oil before I fire up that Continental IO 520 tomorrow; she may need some air in the tires, and the windshield will need a good cleaning. The GPS database needs its 28 day cycle update.

Otherwise I don't expect any surprises from Four One Mike - the pitch servo is still in Kansas for repair but once properly trimmed the plane flies hands off just fine and the pitch servo is only missed when doing an instrument approach (without a pitch servo there is no autopilot coupling to the vertical gradient, so it must be hand flown).

A couple of days ago the airport manager at Oceanside called and left a message that the left rear window was still open (doh!), but that there didn't appear to be anything amiss with the car I use to visit Mom after landing ... phew!

Here it is, well more than 24 hours in advance and I'm already thinking of what needs to be done to accomplish the mission of checking on Mom.

In our world, we would call this a part of risk management.

Risk management entails thinking ahead and making sure that contingencies are in place to deal with the unexpected. Certainly tomorrow things could go wrong. Part of this phase of risk management, however, is planning.

Planning is a primary and critical risk management technique. It is the basis of risk management.

Risk management isn't rocket science. Hell, it's barely science at all - it's mostly common sense. We have thousands of years of existence on this planet and there's not a whole lot of risk that hasn't yet been experienced by human beings.

The lessons we have learned over those thousands of years have been reinforced by experience. We have documented and chronicled the unexpected. We have studied those events. We have devised methods of minimizing such events in the future, and have strategies for dealing with them in case similar events do occur.

Risk management is, by definition, a conservative practice. It has to be because you can't manage the unknown; one doesn't experiment with risk.

Which is why I cringe when I see phrases touting, "Cutting edge risk management techniques."

That phrase is an oxymoron. There is nothing "cutting edge" about risk management. Being "cutting edge" strongly implies operating outside the norm, on the fringes of what is known and established.

Workers' compensation has no place for "cutting edge." We live in a very basic, fundamental world. Work place safety essentially means don't be stupid, and prevent other people from being stupid, or at least minimizing the possibility that someone will be stupid.

Flying epitomizes risk management, and trust me, there's nothing "cutting edge" about making sure planes don't fall out of the sky or hit things that break them.

The lessons have been learned and repeated, and get repeated thousands of times every day: planning, communication, decision making.

Fail any of those three fundamental risk management techniques in aviation and ... you die.

It's a pretty simple concept.

Pilots and airplane owners can make things complicated. We can get tangled up about operational details: manifold pressure readings at certain altitudes, propeller RPM, indicated airspeed versus angle of attack, comm one or comm two, ATIS reports, TCAD settings, frequencies, approach plates, departure procedures, etc., etc.

Lots of details.

But when something bad happens pilots revert to basic, fundamental risk management techniques and the single most basic those is, "fly the airplane."

"Fly the airplane." Simple, concise, easy to remember ... which is what humans need when panic sets in.

We panic a lot in workers' compensation. We talk about medical marijuana, opt out, reform, fee schedules, waiting periods, and other topics that induce industry anxiety.

We get all confused about "flying the airplane" in workers' compensation. We get hung up on the operational details: TTD, PTD, RTW, ACOEM, ODG, MTUS, MPN, QME, etc., etc.

Ugh ....

There's lots of "cutting edge" risk management techniques propounded by "experts" who sell products and services to keep the industry "cutting edge."

The reality is that all these cutting edge risk management techniques just increase costs because it takes away from just "flying the airplane," or in the case of workers' compensation, just paying the claim.

I know, I know - it's not that simple. There are rules to abide by, hoops to jump through, things to be audited, checks and balances ... all sorts of details to pay attention to.

I suggest that it IS that simple; that it doesn't have to be that hard. Is there an injury - yes or no? Does that injury require treatment - yes or no?

When a pilot "just flies the airplane" he or she makes binary decisions - yes or no. There's no time to consider whether the FAA might get mad or ATC might have an issue. There's no time to fiddle with gadgets, dials and knobs.

Everything is a yes or a no, broken down to the most simple, basic risk management fundamentals.

Tomorrow, I'll check flight conditions. My pre-planning today suggests that everything should be fine and within the capabilities of Four One Mike and its pilot.

I'm planning to fly Four One Mike. I'll check the weather and decide, yes or no, whether to go. I'll preflight the plane and then make a yes or no "go" decision.

I'm planning on seeing you tomorrow Mom! I'm hoping for a "yes" risk management decision, but hope you're not disappointed if it's a "no."

Work Is Not A Neutral Risk

Life is a risk - embrace it, don't dispute it.

Workers' compensation is supposed to be a "no fault" system. The basic concept is that if you get hurt at work then you get benefits.

It is amazing to me, though, how many states introduce fault as a concept. A recent Illinois appellate case is a prime example.

The Illinois Appellate Court last week ruled against an employer and said that a welder who injured his knee while pivoting on the wheeled stool he used at work was entitled to benefits.

The employer argued that using the stool was not a peculiar risk and that activities associated with "daily living" aren't supposed to be the subject of workers' compensation.

Illinois law provides that workers "should not award benefits for injuries caused by everyday activities like walking, bending, or turning, even if an employee was ordered or instructed to perform those activities as part of his job duties, unless the employee’s job required him to perform those activities more frequently than members of the general public or in a manner that increased the risk."

This is the "increased risk" doctrine that several other states embrace.

The "increased risk" test was the prevalent standard for compensation in the United States 40 years ago, but most states use "positional risk" standard, which applies a presumption that an injury "arises out of" employment if it occurs while the employee is at work. The reason is that the benefit of greatly reduced litigation outweighs the risk that once in a while a non-legitimate case gets through the system.

In Adcock v. Workers' Compensation Commission, Adcock injured his right knee on the job, and his doctor imposed limitations on his ability to twist, kneel, or walk extensively.

In order to accommodate his restrictions, Knaack, Adcock's employer, provided him with a wheeled stool so he could move about his workspace in a seated position. I have to commend Knaack for this proactive return to work accommodation.

Adcock said he was constantly moving along the length of the workstation on the stool, and swiveling from side-to-side, as he worked.

He said he was unable to maneuver the stool using his right leg because of his knee injury, so he always had to use his left leg to propel the chair.

Adcock said he felt his left knee "pop" while he was twisting towards his work station in May 2010. His doctors later determined he had torn the meniscus in his left knee.

The arbitrator determined this injury was compensable.

"Conducting welding duties from a rolling stool would simply not be a risk to which the general public would likewise be exposed," he opined.

The Workers' Compensation Commission reversed, finding "(t)he act of turning, even in a chair, is an activity of everyday life," so it was "a hazard to which the employee would have been equally exposed apart from the employment."

The Circuit Court judge upheld this decision, but the Appellate Court on Friday reversed, finding compensability.

Presiding Justice William Holdridge wrote for the majority.

He noted that the act of turning while in a seated position is "an activity of everyday life" which is regularly "faced by all members of the general public."

Thus, he said, it was not “distinctly associated” with the Adcock's employment, and an injury from engaging in this act would only be compensable if something about Adcock's job exposed him to a risk of harm that was greater degree than the risk faced by the general public.

Since Adcock performed his job duties under time constraints, and his job duties undisputedly required that he be constantly moving in his chair, Holdridge reasoned Adcock was moving the chair more frequently than members of the general public would, which increased his risk of injury "both quantitatively and qualitatively."

Under such circumstances, Holdridge said, Adcock clearly confronted a neutral risk of daily living to a greater degree than members of the general public by virtue of his employment.

The ruling comes at a unique time in Illinois work comp history as political activity is focused on a more refined attempt at amending the system. Business leaders want cheaper work comp insurance. Labor wants better protection. It seems both are losing right now.

I don't know the specific statistics, but my educated guess is that litigation is a major contributing cost factor to the Illinois system. Litigation arises out of disputes. One big dispute is whether or not an injury arises out of and occurs in the course of employment.

As I said, in most states, with rare exception (such as horseplay) if one gets hurt at work then benefits are due; i.e. "no fault."

A concurring opinion was written in the Adcock case, which I think explains why having any sort of "risk" qualification increases disputes, which thus increases costs.

As the concurrence noted, "almost everything we do at work, we can do at home," but the difference is at work, "you are doing what employer hired you to do," so an injury in the course of engaging in that activity should be compensable.

If Adcock's employer didn't want to take on the risk that he'd hurt himself using the stool, then it could just pay total disability benefits and let Adcock stay home, the concurring opinion stated. But the employer "asked him to come to work an tool around on the seat" doing as much work as he could despite his medical restrictions, and "they got what they bargained for."

It's too bad that Adcock got hurt during a work accommodation. Knaack did the right thing, and I can understand the frustration. But sometimes bad stuff happens. The goal of work comp gets defeated when fault is introduced, and the Illinois standard creates its own extraneous costs by creating disputes when none should exist.

It's Productivity Loss

We all basically know that the longer someone is off work due to a work injury, the more likely there's going to be increased disability, and the less likely there will be a return to work.

What we really don't know, exactly, is why.

Bowzer: obesity and smoking are ID'd with back pain.

There are certainly contributing factors and the analysis is complicated.

A recent series of studies underwritten by the Liberty Mutual Institute for Safety, and not specifically for the workers' compensation industry, is beginning to examine the why - though there is still a lot of work left to be done.

The researchers now call this "productivity loss" - people with productivity loss experience a hugely disproportionate level of disability, to the tune of up to 45 times those that reflect little or no productivity loss as measured by the researchers.

The latest study, published this month in the Journal of Occupational and Environmental Medicine, found five typical “trajectories” people follow over decades in productivity loss. Those who are at a consistently high risk of productivity loss during their lives and those who start out with little productivity loss in their 20s, but begin having worsening productivity in their 30s were the ones most likely to have a permanent disability or leave the workforce altogether.

One of the researchers, Glenn Pransky, said the study represents a new way of identifying people who are at risk of developing work disabilities, whether that be from a work injury or other source, and eventually leave the workforce altogether, because of a new set of risk factors of which not much is known.

And the research is too green to draw much from at this point.

“This data’s not really specific to new people just getting on a job. So we don’t really know when people were hired, when the productivity loss is relative when they’re hired, so it’s really hard to extrapolate choices about who you hire and when,” Pransky said. “And with the (Americans with Disabilities Act), you really need a lot better data before you make a non-hire decision than what we’ve got here.”

An earlier study from Pransky and co-author Elyssa Besen found that workers who are obese, have existing back or leg problems, have “emotional issues” or hypertension were all more likely to have long-term productivity loss. Even having frequent or severe cold and allergy problems was linked with productivity loss.

“When you think about work-related injury, we know that work-related injury and recovery from work-related injury is slowed by the presence of comorbidities,” Besen said. “So these people would be a group where if they got injured, it would probably be a much longer recovery time if they were able to recover at all.”

All of this makes sense. If someone has a condition, be it physical or mental, that interferes with productivity over a course of time, then certainly one would expect there to be a "trajectory" (as the researchers call it) where one could project a disability pattern.

But does this do any good? Or, the opposite, does this actually do harm?

The Americans with Disabilities Act prohibits discrimination on the basis of disability, and the courts have been defining disability for purposes of the ADA for some time now. Does a comorbidity, or series/sequence of comorbidities, that has been identified as a leading indicator of disability, fall within the prohibitions of the ADA?

And if so, where does the discrimination stop and start? Where does the employer, or other ADA vulnerable class, draw the line? At what stage can an employer safely conclude that a particular employee is not desired, or represents too much of a risk? How deep can a prospective employer delve into an applicant's life to determine whether there are risk factors that aren't acceptable to the employer?

There are many more questions.

This research is troubling in that regard - because while the science may say one thing, the law says another.

It Wasn't For Donuts

If the mission had been to procure a donut the result may have been different.

The Appellate Court of Connecticut said in a decision released Monday that a police officer's injuries incurred from a motor vehicle accident while dropping his children off at day care before the start of his shift were compensible.

Connecticut recognizes the "portal-to-portal" rule: certain workers, principally police officers and firefighters, are statutorily deemed to be within the "course of employment" from the moment they leave home, until they return as part of a public policy recognizing that some workers are "always on duty" when they are moving among members of the public, and thus are "always exposed to the dangers of their profession."

Officer Steve McMorris had been a patrol officer for the New Haven Police Department. He lived in Hamden, a suburb of New Haven, with his girlfriend, Anais Rivera. Both worked nights, from 11 p.m. until 7 a.m.

McMorris had two children from a previous relationship, Devin and Jaiden. On nights when both he and Rivera worked, McMorris would take the children to stay overnight at a day care center on Chapel Street in New Haven.

On the evening of June 25, 2011, McMorris left his home with his children in his private vehicle, while dressed in his fully equipped service uniform. He would later testify that his plan was to drop his children off at day care, then continue on to the police station to report for duty.

He followed the normal route he took to work, and before he reached the turn where he could have had to deviate from his normal route, he was involved in an accident.

Both McMorris and Jaiden suffered injuries.

The workers' compensation commissioner for New Haven found McMorris' injuries to be compensable, and a Review Board panel upheld this decision last November.

The Police Department then sought judicial review, arguing McMorris' accident should not be compensable pursuant to General Statutes Section 31-275(1)(E)(ii).

Section 31-275(1)(E)(ii) carves out an exception to the coverage afforded to portal-to-portal workers. It provides that a personal injury will not be deemed to arise out of the employment if the injury is sustained at the portal-to-portal worker's home, and while the employee is engaged in "a preliminary act or acts in preparation for work."

The Department argued that McMorris was engaged in a "preliminary act" of dropping his children off, in preparation for coming to work.

The Appellate Court reasoned that Section 31-275(1)(E)(ii) was inapplicable to McMorris, since his accident had not happened while he was at home.

"Section 31-275(1)(E) is two-pronged and injuries are not compensable only if both prongs of the statute are met," the court said. Since the department conceded that McMorris' accident happened after he had left his home and was on his way to work, the court said this concession was fatal to its argument.

The court said it couldn't consider McMorris' plan to stop at the day care center a "significant deviation from his work route" either. The Appellate Court reasoned that McMorris' act of driving his kids to day care was "inconsequential relative to his job duties."

Those interviewed by WorkCompCentral reporter Sherri Okamoto commented that while they thought it was unusual for the Department to appeal since the law is fairly well settled in Connecticut, the decision clarifies that doing two things at once is not necessarily a deviation, but that "you have to really take yourself out of the course of action that benefits the employer" to lose the protection of the comp system.

Those interviewed also commented that these facts might not work in neighboring New Jersey.

Had McMorris "been in New Jersey, picking up some nice New Jersey bagels," then the "substantial deviation" argument might have worked, said Lawrence Morizio of Cousins, Desrosiers & Morizio, a claimants' attorney and chairman of the Connecticut Bar Association's Workers' Compensation Section.

There was no commentary about a donut deviation exception though.

The case is McMorris v. City of New Haven Police Department.

Good Logic Applied

The California Supreme Court this week denied review of a case where logic was actually applied by the lower courts. Though unfortunate for the injured worker, the courts application of the law brought a rational result.

John Aresco had developed Guillian-Barre syndrome, a rare disorder in which the body's immune system attacks part of the peripheral nervous system, in 1998.

According to the National Institute of Neurological Disorders and Stroke, it affects about one person in 100,000, and its causes are unknown.

The Workers' Compensation Appeals Board had said that "the record was unclear how applicant was injured at work, and [had earlier] concluded regardless of whether the injury was caused by eating tainted food, picking up trash, or eating a berry given to him by a co-worker, none of these can be considered an "extraordinary" employment" within the meaning of Labor Code Section 3208.3(d).

Bowzer didn't think it smelled right...

Section 3208.3(d) bars compensation for psychiatric injuries for workers who have been employed for less than six months, unless it arises from a "sudden and extraordinary" event.

Since Aresco had not worked for his employer for at least six months before his fell ill, the "sudden and extraordinary" exception was his only hope of obtaining compensation for his alleged psyche injury.

But the board said it "is not the medical condition which must be extraordinary," rather, it is the employment condition causing the injury that must be "unusual, uncommon, or unexpected."

This finding resulted in a diminution of Aresco's permanent disability rating from 47% (if psyche were included) to 13% (with only internal injuries left).

Aresco appealed, but the 1st District Court of Appeal summarily denied writ in August. 

The Supreme Court then decided not to take up the matter, Aresco v. WCAB (Marine World Africa USA), No. S221011, at its case-review conference on Wednesday.

I'm all for injured workers getting the maximum amount of benefits due them under the law, and I don't fault Aresco's attorneys for pushing the limits - they're doing their job too.

But the law, as they say, is the law, and the Board and subsequent appellate courts have correctly interpreted the statute.

THAT might be an extraordinary (though not sudden) event.

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.

What's Wrong Becomes Right

The top headline in the Sunday Edition of the Los Angeles Times was about ... you guessed it ... workers' compensation.

Nothing is going to be good about work comp if it is the top story on the top day in one of the largest metropolitan newspapers in the country.

Entitled, "L.A. pays millions as police and firefighter injury claims rise," the story points out the dramatic rise in claims in the past five years, with 19% of police and firefighters taking at least one injury leave last year.

In comparison, the city and county of San Francisco rate was 13%, Long Beach was 12% and San Diego was 10%.

The LA Times article cites the a dramatic rise in costs, both direct and collateral. With budget cuts the police don't replace an officer out on leave which means a district might not get patrolled, or response times may suffer.

According to the story, L.A. police and firefighters on injury leave collected $197 million in salary from 2009 through 2013 and $131 million was spent on medical care, disability payments and related expenses.

The fire department spent an extra $19 million a year covering injured leave positions. The police department doesn't bother to fill positions left unattended, so each absent officer represents "one shift that doesn't get filled, one neighborhood that doesn't get patrolled," Cmdr. Andrew Smith, the department spokesman, is quoted as saying.

As one might suspect, a disproportionate number of claims are attributable to a small share of the workforce, and the story provides a couple of anecdotes as examples - a firefighter who has been out of work for an extended duration, on multiple occasions, with otherwise seemingly minor injuries or disabilities; or the firefighter who was caught competing in mixed martial arts while allegedly disabled.

The law was set up to encourage people to work in first responder positions by ensuring that full salary and benefits would continue if injured in the line of duty.

And as what happens with laws established with good intent, those with lower scruples and standards take advantage of it.

Efforts at prosecuting fraud don't work because it is so difficult to convict a person where so much of a claim is subjective. And most firefighters and police officers are protected by unions which adds an additional layer of complexity.

There are all sorts of explanations offered by the experts, but the best explanation got the least amount of ink: the work place culture fosters this environment - as employees see their colleagues take more and longer leaves, they do the same.

"I would say, without any ill-intent, it just becomes a practice," David Luther, interim general manager of the city's Personnel Department, told the Times. "It becomes somewhat automatic."

A sort of cyclone of attitude sucks up people that are otherwise of fine moral character; what's wrong becomes right just by sheer volume.

This is a bigger problem than me and my blog, certainly. But I've always thought that there are more "good" people in the work place than "bad" people - much more - and the way to combat certain issues is to use those good people more effectively. 

So it seems to me that the police and firefighters just don't do a good job at policing themselves - that the fear and intimidation of peer pressure is on the wrong side of the curve, and that if fellow officers and firefighters were called upon to pass judgment on whether a claim passes the "sniff test" there would be much fewer questionable claims and lower costs.

I know, I'm talking a utopian system where employees are essentially jurors to their colleagues' claims, but I'm quite certain that if such a system existed there would be much tighter compliance and respect for the law and the system set up to support it.

At least with the cases highlighted by the Times, officers and firefighters could certainly (assuming no union rules to the contrary) be required to "report" to the job, then assigned to the break room or other neutral space to "recover." My guess is that being off work will lose its appeal real quick if one cannot spend time as pleased.

The Alzheimer's Risk

As you likely are aware, Mom is in a memory care facility, so the California Supreme Court's ruling on whether a patient (or the family of a patient) may be liable for injuries to an Alzheimer's care worker caught my attention.

Mom is in a top quality memory care facility and I am fortunate enough to be able to visit her on average of twice a week, so I have become quite familiar with (and friends with) many of the residents and their families at the facility.

Dementia and Alzheimer's (a subset of dementia) are odd afflictions - some folks, like my mom, just don't remember much of anything, but they're pleasant. They smile, joke and are overall convivial.

Others though get the worst of the disease and can be aggressive, combative and sometimes a bit scary. These folks may be old, but can be very strong - mind over matter is not just a saying!

I've seen workers hit by patients, and I, myself have been the subject of aggressive behavior by an Alzheimer's patient.

Work injuries are a very real part of the Alzheimer's care worker's occupation.

And the Supreme Court has said that work comp the only remedy for such care workers.

The majority opinion in Gregory v. Cott expressly declared that because agitation and physical aggression are common late-stage symptoms of Alzheimer's, injuries to caregivers are not unusual.

As I noted, my experience would support this observation.

Mom doesn't bite.

The majority said that the risk of injury by a patient is part of the job that professional caregivers such as plaintiff Carolyn Gregory voluntarily take on. Ergo, while Gregory's employer was liable to her under the state's workers' compensation scheme, the family that had retained her services could not be held liable in tort.

Here's the story:

Bernard Cott contracted with Gregory's employer in 2005 to get in-home care for his 85-year-old wife, Lorraine.

Gregory had training and experience in Alzheimer's care.

Bernard warned Gregory that Lorraine was combative and would bite, kick, scratch and flail.

In September 2008, as Gregory was washing dishes in the kitchen sink, Lorraine approached her from behind and began to reach into the sink. Gregory dropped the knife she was washing and moved to restrain Lorraine. As she did so, the knife struck her wrist.

The knife severed vital nerves and tendons, causing Gregory to lose the use of her left thumb and two fingers.

Gregory's employer paid her workers' compensation benefits for her injuries, but she also sought to sue Lorraine and Bernard in tort, asserting claims for negligence and premises liability.

Lorraine and Bernard moved to dismiss her claim, arguing that it was barred by the assumption-of-risk doctrine.

As applied in a workplace context, this doctrine bars a worker from suing a defendant for an injury that arose from the very condition or hazard that the defendant had hired the worker to remedy or confront.

The "firefighter's rule," which precludes firefighters and police officers from suing members of the public for the conduct that makes their employment necessary, is a variant of the assumption-of-risk doctrine. So is the "veterinarian's rule," which bars those who work with animals from suing if they are bitten by dogs during treatment.

The trial court granted summary judgment in favor of Lorraine and Bernard, finding the doctrine applicable to Gregory's work with Alzheimer's patients.

A divided 2nd District Court of Appeal panel upheld the ruling last January.

A Supreme Court majority consisting of Chief Justice Tani Cantil-Sakauye and Justices Carol Corrigan, Marvin Baxter and Ming Chin on Monday affirmed the 2nd DCA.

Corrigan, writing for the majority, cited a 1996 case called Herrle v. Estate of Marshall, that held institutionalized mental patients are not liable for injuries inflicted on their caretakers.

"As the Herrle court recognized, primary assumption of risk in its occupational aspect is readily applicable to the relationship between hired," Corrigan wrote Monday. Thus, as violent behavior is a known symptom of Alzheimer's, "the risk of violent injury is inherent in the occupation of caring for Alzheimer's patients."

Corrgian rejected the idea that caregivers in private homes face higher risks and should therefore be treated differently than caregivers in institutionalized settings.

However, she cautioned that she was not saying that anyone who helps take care of Alzheimer's patients assumes the risk of injury either.

"The rule we adopt is limited to professional home health care workers who are trained and employed by an agency," Corrigan said. She explained that Bernard had "contracted with an agency that promised to provide him an aide trained to manage his wife's condition," and by doing so, Bernard "paid to be relieved of a duty to protect the aide from the very risks she was retained to encounter."

Justice Goodwin Liu wrote a separate concurring opinion. He said he was reluctant to push cases such as Gregory's into the tort system because that would pit "low-wage workers and ordinary families who are poorly positioned to mitigate risks or absorb the costs of injuries" against each other and that employers of in-home health care workers were in the best position to take on the risk of injury to workers.

"As repeat players who hold themselves out as qualified and competent care providers, the agencies are far better positioned than their workers or their clients to assess risks, to devise reasonable safety measures, to provide proper training to caregivers, and to determine whether in-home care is appropriate for a patient in the first instance and on an ongoing basis as a disease progresses," Liu opined.

Dissenting 2nd DCA Justice Laurence D. Rubin, sitting on the Supreme Court by appointment took issue with both Corrgan and Liu's assumption that the workers‘ compensation system would mitigate the consequences of subjecting Alzheimer‘s caregivers to primary assumption of risk.

Rubin said he could envision multiple situations in which a caregiver will not be covered by workers' compensation and warned that having the assumption-of-risk doctrine bar any recovery for injuries suffered by such workers would leave them without any remedy.

For example, had Gregory been an independent contractor she would not have been entitled to workers' compensation benefits, Rubin noted. The same would hold true if the employer didn't carry comp insurance, or if the worker had been hired directly by the patient's family, he said.

"For these reasons, I do not believe that the potential for workers' compensation benefits provides doctrinal support for the majority's extension of primary assumption of risk to a new class of workers," Rubin concluded.

Rubin might have some argument, except the majority, as noted above, said that the ruling was specifically applicable only to workers hired through an agency. Although Rubin likely knows that there are going to be "employers" who fail to provide workers' compensation insurance ... but that's a different story.

The Court egged on the Legislature to do something about all of us old folks moving into the system:

"We encourage the Legislature to focus its attention on the problems associated with Alzheimer's caregiving," the majority said. As the number of Californians afflicted with this disease can only be expected to grow in coming years, the idea of "enhanced insurance benefits for caregivers exposed to the risk of injury" was "worthy of legislative investigation."

My guess is that in the coming legislative sessions we'll see some presumption statutes or other sort of special compensation treatment for caregiving workers at memory care facilities and agencies. And of course the cost of insurance to those employers will go up (over and above the untamed inflation in California).

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!

CO Pot Goes to Court

Colorado workers' compensation practitioners speculate in this morning's edition of WorkCompCentral news whether the state, being the first state in the nation to legalize the recreational use of marijuana, is going to handle pot in the workplace differently than some of the other jurisdictions that have faced similar issues.

While the case that the Colorado Supreme Court has accepted is about whether an employer can lawfully terminate a quadriplegic employee for his off-the-job medical-marijuana use, because a Colorado employer can reduce indemnity if an employee tests positive after a work place accident, there's some apprehension about what the court says will spill into work comp.

Brandon Coats, a former telephone customer service representative for DISH Network, brought a wrongful termination action against the Englewood-based direct-broadcast satellite service provider.

In Colorado an employer can administer a drug test upon the occasion of a work place accident and can immediately reduce the worker's indemnity benefits by 50% if the worker tests positive.

The worker can challenge the employer's action by arguing that the accident had no relationship to his drug use, which is the law in many states, and then the burden is on the employer to show that there was a relationship between the drug level detected and causation of the accident.

What is the "intoxication" level of the injured worker who tests positive for marijuana has not been settled and there are no standards yet. Marijuana has a very long latency period due to the fact that it binds with fat cells, as opposed to alcohol, which is water soluble, so the fact of marijuana in the blood stream is evident long after intoxication.

Some employers have a drug-free workplace policy and the law in Colorado recognizes such policy as a condition of employment.

Thus, if a Colorado worker is fired for-cause, i.e. violating the drug-free workplace policy, the worker is not entitled to temporary total disability benefits because TTD is intended to replace the worker's wage loss if an injury is the cause of the loss, and if a worker was fired for cause, then the cause of the loss was not the injury.

According to the National Institute on Drug Abuse, marijuana smokers are more likely than non-marijuana smokers to file workers' compensation claims. For example, a study among postal workers found that employees who tested positive for marijuana on a pre-employment urine drug test had 55% more industrial accidents, 85% more injuries, and a 75% increase in absenteeism compared with those who tested negative for marijuana use.

Coats is a registered medical marijuana user. He is paralyzed in over 80% of his body because of injuries from a car accident when he was 16. He claims to use marijuana to control the involuntary muscle spasms that his prescription medicine was no longer treating effectively.

According to reports, Coats was a good employee who got positive reviews from his supervisors for the three years he worked at DISH.

In May 2010, DISH asked Coats to undergo a random drug test. Coats told the test administrator that he was a medical marijuana user, but that didn't stop the company from firing him when the test came back positive for THC, the psychoactive ingredient in marijuana.

Coats then sued DISH for violating Colorado Revised Statute 24-34-402.5, which prohibits employers from discriminating or terminating employees for engaging in legal off-duty conduct.

DISH moved for summary judgment, and Arapahoe County District Court Judge Elizabeth Beebe Volz granted DISH's motion.

Volz ruled that because marijuana was still unlawful under federal law, it could not fit the definition of a "lawful activity" in a state statute.

A divided court of appeal upheld the trial level decision.

His attorney, Denver-based Michael D. Evans is arguing to the state Supreme Court that if using medical marijuana is a lawful activity under Colorado law, then employers should not be allowed to fire a worker for using marijuana outside of work.

A number of other courts have tackled the issue of drug testing in the work place brought by plaintiffs under different theories. The courts have mostly ruled that just because one has the state right to use marijuana for medicinal purposes does not mean that the employee can sue the employer for discrimination or take any other action against the employer.

If the Colorado Supreme Court wants to stay out of workers' compensation issues, then it will issue a very narrow ruling applicable only to whether this constituted a wrongful termination.

But high court rulings typically are full of explanatory theory - what we lawyers call, "dictum." Often it is the dictum in such cases that give rise to cases that involve different facts and thus new law, or refinement of previously stated law.

Whether the court wanders into workers' compensation issues is unlikely, but the case has the potential to radically redefine drug policy in Colorado, and thus, its application to workers' compensation.

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.

Why Fighting Fraud Will Never Work

Fraud.

Mention workers' compensation to nearly any lay person on the street and nearly everyone knows someone who has defrauded the system as either a lying, cheating worker, or as a lying, cheating employer.

Even in our own ranks we all believe that there is fraud in abundance, and that it not only pervades the system but contributes disproportionately to the costs of procurement and administration.

Consequently many states have special funds to collect and distribute money in an effort to curb fraud and other programs intent on combating abuses.

Yet, it seems, these funds and programs are not particularly effective. Criminals will engage in criminal behavior regardless of programs designed to discourage such behavior.

In his book "The Immortality Complex" Jerome Schulte, MD, a forensic psychiatrist who has worked with the criminal mind for over 40 years, basically concludes that the criminal is going to engage in crime regardless of the consequences. There are certain issues in the criminal mind that make it work the way it does.

Yet we spend oodles of money trying to get people to comply with the law by prosecuting "fraud."

For instance, the California Fraud Assessment Commission controls how $51 million in funding from an assessment on employers is granted to fight fraud this year. An estimated $31 million is divvied up among county district attorneys statewide that apply for funding help in their fraud investigative units.

The new chairman of the commission, Don Marshall, is very frustrated that despite all of the funding workers' compensation fraud seems to run rampant.

"I am very aware of the fraud that is currently ripping the workers' compensation system apart," said Marshall. "I believe it's that bad."

"We've got to look at better ways to go after this fraud," he said. "It's continuing."

Fingers get pointed at the district attorneys that receive money from the commission for not doing their jobs. Other fingers get pointed at the Department of Insurance for not sharing data. Still other fingers get pointed at the industry itself for not taking the issue seriously.

Competitive strategies are implemented to get various entities and people to engage in crime fighting tactics, and rewards are placed to bait others into action.

Yet the "fight" against "fraud" seems ludicrously ineffective, and fails to make any substantial return on investment.

For instance, the California Department of Insurance says that, for fiscal 2011-2012 the Fraud Commission was allocated $53 million from employer assessments. District attorneys reported a total of 819 arrests, which also included the majority of Fraud Division arrests (only 132 arrests). During the same timeframe, district attorneys prosecuted 1,332 cases with 1,565 suspects, resulting in 708 convictions. Restitution of $53,006,082 was ordered in connection with these convictions and $5,943,570 was collected during Fiscal Year 2011-12.

Yet the Fraud Division of the DOI says that total estimated damages from workers' compensation fraud totals nearly a half billion dollars.

And doing the math, no reasonable business person would spend $100 to recover $10. That's a huge negative return on investment.

Comments to the WorkCompCentral story last week about the Fraud Commission thus far total 23 - fraud is a very emotional topic for nearly everyone in the system. With all that passion, you'd think we could do something about it.

Commissioner Joel Sherman said "it's disconcerting" at the end of funding years to learn that no progress has been made in the fight against workers' compensation fraud. He, too, noted that criminals are evolving.

District attorneys are tasked with prosecuting criminals. But one of the problems is that there are so many criminals! And most of those criminals aren't too concerned with workers' compensation...

Here's the deal - we won't and can't stop fraud. That will never happen. The absolute best we can do is slow it down and minimize the impact, and even then such efforts are questionable.

Why? First off, fraud is extremely difficult to prove in a criminal court of law. Not only must the prosecutor prove beyond a reasonable doubt that the alleged had a specific intent to make a false representation of a present or past fact, there must be action in reliance upon such representation to the detriment of another, and there must be damage as a result.

Second, the prosecutor must convince 12 people of this. All 12 people, and if just one doesn't agree then the alleged goes free. What you and I think of as fraud may not, in the eyes of the law, be fraud.

The problem with our efforts to stem fraud in workers' compensation is because it is so emotional. When we humans get emotional we make irrational decisions.

Like trying to throw money in all the wrong places for all the wrong reasons.

Why are we funding district attorney's offices with excess money in a competitive game to see who can get more fraud convictions? Sure this may seem like a cause and effect representation of the efforts, but as noted above, it hardly makes any economic sense. And it simply encourages district attorneys to take on the easy cases for easy convictions to get easy money on an annual basis.

Commissioner Jiles Smith at the Fraud Commission meeting last Wednesday called for a three-year strategic plan to increase the effectiveness of fraud investigations.

We don't need three years nor do we need more effective fraud investigations.

District attorneys rely on the collection of evidence by system participants, namely workers' compensation insurance company Special Investigation Units. These SIUs have gotten much, much better at acquiring, collecting, preserving and presenting evidence since I was a young attorney, but the truth is that they are still largely ineffective as noted in the dismal rate of prosecution and poor return on investment.

We get anecdotal evidence of small time fraud prosecution due to the collective efforts of these SIUs and district attorney involvement, but what about that $53 million in funding? Remember that does not count the cost of an insurance company's SIU. Add that in and the actual money spent combatting fraud (and ergo, the pathetic return on investment) grows substantially.

What we don't need is better workers' compensation fraud investigation. What would bring a better result is the income tax evasion that results from fraudulent workers' compensation activity.

What brought down Al Capone? It wasn't his criminal misdeeds - it was failure to state income on his returns.

Want to bring down a criminal medical enterprise? Investigate the sources and reporting of income.

What to stick it to the premium skirting payroll falsifying employer? Check those income returns for false statements (they're there ... guaranteed payroll expenses are buried as some form of "other" deduction).

Need to find the injured worker who is still getting benefits along with other income? You got it - look at the tax records.

It's not all that hard. Yep, income taxes have a level of confidentiality to them and certainly they are protected from someone just sniffing around, but guaranteed if there's reasonable suspicion to issue a subpoena then the evidence is in the numbers.

The funding shouldn't be going to district attorneys offices. The funding should be going to the Treasury Department.

Battling workers' compensation fraud directly is like trying to enforce the prohibition against alcohol (and in modern times marijuana). It didn't work then, and it won't work now.

Get the tax records and find your crime.

But try to prove to 12 people that someone intentionally misrepresented a fact for the purpose of cheating the workers' compensation system and you get a prosecution rate of point zero three percent.

Put the Butcher Knife Away

A Pennsylvania case about home care hit ... ahem ... home, since my parents are under the watchful eyes of 24 hour caretakers, particularly in regards to Mom.

Mom, as you likely are aware, has dementia and it is progressing normally. The problem with dementia is that the person with the disease not only forgets, but that forgetting can lead to very erroneous conclusions that might provoke unwanted behavior.

For instance, last week the caretaker on duty early that morning was asleep on the living room couch while my parents also slept. For some reason Mom got up and migrated to the living room where she encountered her caretaker.

This caretaker had been working with my mother now for at least 6 months. She is not a stranger to the household.

But Mom forgot this! Mom assumed that her caretaker was a burglar, and shouted for her to get out of the house and actually began physically challenging her. My sister-in-law had to intervene at 3 a.m. to get Mom calmed down and to sort things out.

The caretaker wasn't hurt, but it demonstrated that even a mild dementia patient can have symptoms that can result in a dangerous situation for the patient and the help.

In Pennsylvania the mother of a disabled man taking care of him in her house under the state Department of Welfare program for transition to independent living was attacked by her son in the middle of the night.

Pennsylvania Coat of Arms

Originally found compensable by a workers' compensation judge, then reversed by the Appeals Board, the state Commonwealth Court agreed with the original ruling finding compensability.

The case is O'Rourke v. WCAB (Gartland). Gartland is the son, O'Rourke is the mother/caretaker.

Gartland had not lived with his mother since he was 15 years old, and he had significant health issues resulting from a long history of drug problems. His leg was amputated in 2007, after which he spent six months at the Riverside Rehabilitation Center.

A nonprofit organization that helps people with disabilities in gaining independence approached O'Rourke and asked if she would be willing to care for Gartland until Gartland was capable of caring for himself.

O'Rourke agreed, and since Gartland did not have a residence of his own, Gartland moved in with his mother on July 7, 2008.

The state Department of Welfare provided funding for Gartland's care through a program that established him as a Pennsylvania employer. Through the program, Gartland received a tax identification number and a workers' compensation policy, and another nonprofit organization served as his payroll agent.

The state program did not pay for 24-hour or night-time care for Gartland, but under the terms of O'Rourke's employment, he could request care to be provided during evening or night-time hours. The program also did not require Gartland's caregiver to live with him, only that the care be provided in his home.

O'Rourke generally worked 40 hours from Monday through Friday and 12 hours per day on Saturday and Sunday.

On Friday, April 10, 2009, O'Rourke indicated on her time sheet that she stopped working at 4:10 p.m. She then left the residence to play Bingo.

When she returned at around 10 p.m., Gartland asked her to prepare him something to eat. O'Rourke and Gartland argued because she wanted to change her dress first. She then went to change her clothes, prepared some food for Gartland and then made the couch up as a bed for Gartland before going to bed at around 11:30.

Roughly two hours later, while O'Rourke was sleeping, Gartland attacked her with a butcher knife. Gartland cut her throat and inflicted three other stab wounds.

Gartland later pleaded guilty to attempted homicide, simple assault, aggravated assault and reckless endangerment of another person.

O'Rourke allegedly lost function in her left arm and developed post-traumatic stress disorder from the attack by her son.

The workers' compensation judge found compensability and awarded benefits.

The WCAB reversed, finding that O'Rourke had finished her employment duties for the day, and her employment no longer required her to be present in Gartland's residence.

She was present, the majority posited, only because Gartland's residence was her residence as well. The WCAB said she was not present in her capacity as an "employee" at the time of the attack.

The Commonwealth Court found the matter compensable under the bunkhouse rule.

While the assault had taken place in a house that actually belonged to O'Rourke and not Gartland, the majority said that this was still the premises of O'Rourke's employer since it was the place where O'Rourke performed services for Gartland for up to 64 hours per week, in exchange for payment.

And while the services O'Rourke performed for Gartland did not occur within O'Rourke's bedroom, the majority posited that since O'Rourke's job basically required her to live with Gartland, and sleep "is a necessity of life," under the bunkhouse rule, the area where she slept had to be treated as part of her employer's "premises."

Judge Bonnie Brigance Leadbetter dissented stating that it defied logic to call the claim compensable because O'Rourke was stabbed by her own son while she lay sleeping in her own bed, in her own home.

Was the majority stretching to find a remedy for O'Rourke? Or is this just one of those very close cases that could have gone either way where reasonable minds differ?

I don't know whether there was any alternative insurance to cover O'Rourke's injuries such as homeowner's insurance. I'm sure there are some underlying facts that are not part of the official court opinion that swayed the majority opinion.

The dangers of home care. I hope Mom doesn't pull out any butcher knives...