Author: WorkCompAcademy

The California Senate voted 24-15 to approve a bill (AB 305) that would prohibit medical problems primarily affecting women from being considered pre-existing conditions when calculating workers’ compensation benefits. The bill now returns to the Assembly for a final vote.

This bill prohibits apportionment if pregnancy or menopause is contemporaneous with the injured worker’s claimed injury. This bill also requires that breast cancer not be less than the comparable impairment rating for prostate cancer. It also prohibits apportionment in cases of psychiatric injury caused by sexual harassment or any of the conditions listed above if the conditions are contemporaneous with the psychiatric injury.

Senate Floor Amendments of 9/3/15 remove “osteoporosis casually related to menopause” from the list of conditions where apportionment is prohibited.

According to state Sen. Marty Block (D-San Diego), the bill is part of an effort to end gender bias in the workplace. Some proponents of the bill have argued that the AMA Guides are not objective, specifically in the area of gender-specific injuries. Specifically, proponents point to the fact that the AMA Guides rate the removal of female breasts at a WPI of 0%, while the removal of a prostate would rate a 16%-20% WPI, arguing that such a rating shows bias against women.

Opponents argue that AB 305 is an attempt to undermine an employer’s use of apportionment when determining liability for permanent disability awards. Specifically, opponents note that apportionment is more than a decade old and ensures that employers do not need to pay for non-industrial injuries. Further, opponents point to case law and statute which protects injured workers from abusive apportionment, including apportionment on the basis of gender. Opponents further argue that AB 305 will increase litigation, raise indemnity costs on employers, and increase systemic instability and subjectivity.

Norman McAtee sustained industrial injury to his neck, back, psyche and other body parts while working for Briggs and Pearson Construction as a carpenter. On March 30, 2011 he received a stipulated award of I 00% disability and future medical treatment.

McAtee had unsuccessful back surgery, and he has chronic pain. A nerve stimulator was not effective. Thus he has used narcotic analgesics for several years and has tried various formulations, including Duragesic patches which are helpful and improve his functioning.

McAtee appealed a December 2, 2014 IMR determination that modified PTP requests for additional Duragesic. The IMR rationale states that “Guidelines go on to recommend discontinuing opioids if there is no documentation of improved function and pain.” The rationale further states, “within the documentation available for review, there is no indication that the medication is improving the patient’s function or pain (in terms of specific examples of functional improvement and percent reduction in pain or reduce NRS), no documentation regarding side effects, and no discussion regarding aberrant use.” The WCJ denied the appeal, but a WCAB panel reversed in the case of McAtee v Briggs and Pearson Construction.

On appeal, McAtee argued it was shown at trial that the December 2, 2014 IMR determination resulted from plainly erroneous or implied findings of fact as described in Labor Code section 4610.6(h)(5). The WCAB agreed. The !MR findings are mistakes of fact as a matter of ordinary knowledge and not a matter that is subject to expert opinion. The PTP “specifically documents applicant’s improved function and reduced pain with his use of the Duragesic patches.” These indications of improved function,reduced pain with use of the medication, along with documentation concerning potential side effects and aberrant use, show that the contrary !MR findings were mistakes of fact as a matter of ordinary knowledge.

Reconsideration was granted, the decision was reversed, and hereby remanded to the Administrative Director pursuant to Labor Code section 4610.6(i) for Independent Medical Review by a different reviewer.

Ride-sharing service Uber has agreed to pay a $77,925 fine to the state of Alaska over unpaid workers’ compensation insurance for its drivers. Uber operated in Anchorage for about six months before pulling out of Alaska. In the Aug. 25 settlement, Uber admitted no wrongdoing. The company agreed not to return to Alaska until it is in compliance with state workers’ compensation laws.

The state Department of Labor and Workforce Development said it began an investigation into Uber’s business practices when the company began offering rides in Anchorage in October 2014. But the investigation never made it to a hearing because Uber pulled out of Alaska in March 2015, facing a judge’s order that it operate for free and failed negotiations with the city of Anchorage.

Rhonda Gerharz, the chief investigator for the special investigations unit of the Department of Labor and Workforce Development, said that when Uber was offering rides in Anchorage, the company was operating under the assumption that its drivers were contractors and not employees. The Department of Labor disagreed, but Uber wasn’t charged with violating state laws because the company stopped operating in Alaska while the investigation was ongoing — the matter never got to a formal hearing. “It’s just an allegation,” Gerharz said. “It’s a settlement agreement because Uber left the state.”

Other states, including California, have also ruled that Uber drivers are employees of the company and not contractors.

The workers’ compensation insurance issue was just one of many roadblocks the company faced when it tried to start its service in Anchorage. The city went to court to stop Uber from operating because it didn’t comply with the city’s taxi ordinances — rules requiring drivers to get city-sanctioned background checks, have video cameras in their cars and have a certain amount of collision and liability insurance.

In October 2014, an Anchorage Superior Court judge ruled Uber could only operate in Anchorage if it continued its initial free ride program. The judge prohibited Uber from charging for rides until it could come to an agreement with the city over the details of its operations. Uber paid its drivers but did not charge its customers in Anchorage for about six months before pulling out of Alaska entirely.

Uber drivers scored a victory Tuesday when a federal judge ruled that they could move forward with a class-action lawsuit that seeks to designate them as employees, not independent contractors.

The LA Times reports that U.S. District Judge Edward Chen in San Francisco ruled for the plaintiffs, denying the on-demand transportation company’s motion for a quick judgment and allowing the lawsuit to proceed as a class action.

The decision could have deep implications for Uber and other companies in the fast-growing on-demand economy, in which customers use smartphone apps to order services such as car rides and home delivery of groceries and restaurant food.

Uber now stands to lose far more than if the case had proceeded as a suit involving only three plaintiffs. In addition to potentially being on the hook for back wages, sick leave, expenses and benefits such as workers’ compensation coverage, the company could be ordered to pay gratuities owed to thousands of former drivers. And that doesn’t even touch on what a loss would mean for Uber’s independent contractor-reliant business model, which has earned the company a $50-billion valuation.

Plaintiff lawyer Shannon Liss-Riordan, who is also representing Lyft drivers in a separate class-action lawsuit against Lyft, Uber’s top competitor, said in a prepared statement that Chen’s decision Tuesday was a “major victory” for Uber drivers. The class however is not as big as Liss-Riordan had hoped the judge would certify. The certified class excludes current and recent Uber drivers bound by Uber’s 2014 arbitration clause. And one of the three plaintiffs, Thomas Colopy, was also found to not qualify. An Uber spokesperson said this leaves them with only a “tiny fraction of the class [of 160,000] the plaintiffs were seeking.”

A trial date has not yet been set. Uber’s spokesperson said the company plans to appeal.

A new study published in the Journal of Bone and Joint Surgery may help establish reserve estimates for future medical care following meniscus transplant surgeries. While most patients younger than age 50 experienced reduced pain and improved knee function following transplant surgery, many patients required additional surgery within 10 years

The meniscus is a wedge-shaped piece of fibrocartilage in the knee that acts as a shock absorber between the thighbone and shinbone. For younger patients with knee pain after loss of the meniscus, a meniscus transplant is performed to maintain a cushion between the two bones. An orthopedic surgeon executes the knee surgery by using an arthroscope to accurately place and stitch new, transplanted meniscal tissue.

In the new study, researchers followed 38 meniscal transplant patients under age 50, who did not have arthritis, for an average of 11 years following surgery. The estimated probabilities of transplant survival were 88% at five years, 63% at ten years, and 40% at fifteen years. Worst-case survival rate estimates were 73% at five years, 68% at seven years, 48% at ten years, and 15% at fifteen years. The mean time to failure was 8.2 years for medial transplants and 7.6 years for lateral transplants.

“This data provides surgeons with reasonable percentages that encourage delaying additional major knee surgeries related to a damaged meniscus,” said Frank R. Noyes, MD, lead study author and founder of the Noyes Knee Institute at the Cincinnati Sports Medicine and Orthopaedic Center.

“However, the longer-term function of meniscus transplants remains questionable because the survivorship rate of the transplants decreases to between 40 and 15 percent at 15 years,” said Dr. Noyes. “Patients should be advised that this procedure is not curative in the long-term and additional surgery will most likely be necessary.”