Tag: 2017 News

The Workers’ Compensation Ethics Advisory Committee is a state committee independent of the DWC. The EAC is charged with reviewing and monitoring complaints of misconduct filed against workers’ compensation administrative law judges. Anyone may file a complaint with the EAC. Complaints may be submitted anonymously, but all complaints must be presented in writing.

According to its 2016 Annual report, the EAC considered a total of 39 of the 44 new complaints it received in calendar year 2016, in addition to 6 complaints pending from 2015. A large proportion of the complaints alleged legal error not involving judicial misconduct or expressed dissatisfaction with a judge’s decision. Of the 42 resolved complaints, the EAC identified 6 complaints resulting in judicial misconduct for which they recommended further action by the Chief Judge or the administrative director.

In one of the situations finding judicial misconduct, an applicant attorney alleged having raised the right to call the defense attorney as a hostile witness under Evidence Code 776. The judge noted in the minutes of the hearing the view that complainant’s argument was silly. The complainant complained that this comment was made in front of all the witnesses.

After the complainant told the judge about having won a few cases on Medical Provider Network (MPN) access standards violations against this defendant, the judge indicated, “Good for you, but it’s not going to be the case with this judge.” After the complainant indicated that a petition for removal could be filed, the judge replied, “Go ahead – I have friends in the Recon Unit.”

The complainant also alleged that the judge gave legal advice to the complainant’s client, undermining the complainant’s competency and professionalism. The complainant alleged that the judge told the client that a chiropractor is not needed as a Primary Treating Physician; rather, the client needs an orthopedic hand surgeon to treat the hand. The complainant alleged that the judge failed to take a neutral position, stating that the judge would rule against the complainant.

Following its review of the investigation, the committee identified violations of Canons 1, 2, and 3 of the Code of Juridical Ethics and recommended to the CJ that further appropriate action be taken.

An another situation, an anonymous complainant, alleged that the judge failed to respect and comply with the law and failed to act in a manner that promotes public confidence. The complainant alleged that the judge had a reputation for issuing notices, orders, and reports on reconsideration/removal that contain substantially false and misleading statements of facts. The complainant attached a WCAB panel decision reversing the judge’s decision. The complainant complained that the judge’s continuing pattern and practice of disregarding the rights of lien claimants reduced the WCAB to a mockery.

Following its review of the investigation, the committee identified violations of Canons 1, 2, and 3 of the Code of Juridical Ethics and recommended to the CJ that further appropriate action be taken.

Maureen Hikida was employed by Costco from November 1984 to May 2010. During this period, she developed a number of medical conditions, including carpel tunnel syndrome.

In May 2010, she took leave from work to undergo carpel tunnel surgery. Following the surgery, she developed chronic regional pain syndrome (CRPS), a condition that caused her debilitating pain in her upper extremities and severely impaired her ability to function.

An AME in orthopedics, Chester Hasday, M.D., found her permanently and totally disabled from the labor market.

He found that her permanent total disability was due entirely to the effects of the CRPS that she developed as a result of the failed carpal tunnel surgery. He further concluded that petitioner’s carpal tunnel condition itself was 90 percent due to industrial factors and 10 percent to nonindustrial factors. The WCJ awarded 90% disability after apportionment.

In a two-to-one decision, the Board affirmed the apportionment. The majority concluded: “To properly evaluate the issue of apportionment of permanent disability, it is necessary to ‘parcel out’ the causative sources of the permanent disability, nonindustrial, prior industrial and current industrial, and ‘decide the amount directly caused by the current industrial source.”

The Court of Appeal reversed and awarded unapportioned 100% disability in the published case of Hikida v WCAB.

The issue presented is whether an employer is responsible for both the medical treatment and any disability arising directly from unsuccessful medical intervention, without apportionment.

The Court of Appeal concluded that “despite significant changes in the law governing workers’ compensation in 2004, disability resulting from medical treatment for which the employer is responsible is not subject to apportionment.”

Here, there is no dispute that the disabling carpal tunnel syndrome from which petitioner suffered was largely the result of her many years of clerical employment with Costco. It followed that Costco was required to provide medical treatment to resolve the problem, without apportionment. The surgery went badly, leaving appellant with a far more disabling condition — CRPS — that will never be alleviated.

California workers’ compensation law relieves Costco of liability for any negligence in the provision of the medical treatment that led to petitioner’s CRPS. It does not relieve Costco of the obligation to compensate petitioner for this disability without apportionment.

“Our review of the authorities convinces us that in enacting the “new regime of apportionment based on causation,” the Legislature did not intend to transform the law requiring employers to pay for all medical treatment caused by an industrial injury, including the foreseeable consequences of such medical treatment.”

Yu Qin Zhu was hired as a home caretaker by the the California State Department of Social Services. The Department added Zhu to the registry of qualified workers. Zhu reviewed the registry of patients, contacted persons on the registry, and then interviewed her selections so that both parties could decide whether Zhu would work as their caretaker. The patients Zhu cared for set the schedule and told her what her duties were for each day.

Zhu worked in this capacity for the Department from 2003 through 2015. During this time, Zhu was paid by the Department every two weeks with one paycheck for all the work performed. She was not paid for transportation to, from, or in between locations.

On December 16, 2015, Zhu cared for a couple living in Monterey Park from approximately 8:30 a.m. to 11:30 a.m. Zhu was scheduled to care for a woman in Alhambra in the afternoon. While she was riding her bike from Monterey Park to the house in Alhambra, Zhu was involved in a bicycle-automobile collision.

Zhu’s claim was heard on the limited issues of employment and injury arising out of and in the course of the employment. The WCJ found Zhu’s injury compensable because her “transportation between the clients’ homes was a mandatory part of the employment.”

A majority of the Appeals Board rescinded the WCJ’s decision after granting reconsideration. They reasoned that Zhu, chose her own clients, work locations and hours, and merely used the Department to obtain client referrals. The means of transit were immaterial to the Department, and travel by bicycle was for Zhu’s own convenience and benefit.

The dissenting WCAB commissioner agreed with the WCJ and found “there was an implied requirement that [Zhu] furnish her own transportation to travel between disabled clients, care for whom is the responsibility of defendant.” The dissent found Zhu qualified for the “required vehicle exception” to the going and coming rule because the employer received a benefit from the employee’s provision of her own transportation between job sites.

The Court of Appeal reversed the WCAB and extended the application of the going and coming rule in the published case of Zhu v WCAB.

The going and coming rule applies to a “local commute enroute to fixed a place of business at fixed hours. (Hinojosa, 8 Cal.3d at p. 157.) “Thus, if the employee is commuting between his or her home and place of work at the time of day that is usual for the commute, the going and coming rule applies. Zhu was not commuting between home and the workplace at a fixed time for that commute when she was injured.”

However, the going and coming rule has in practice been invoked when the employee was in transit between points other than the home and workplace. In these cases the real issue is not whether the going and coming rule applies, but whether the transit is part of the employment or the employment relationship. Zhu’s transit was for the Department’s benefit and was impliedly requested by the Department.

Challenges to the Constitutionality of Worker’ Compensation programs, or components of such programs seems to be under unrelenting pressure from lawyers seeking to have courts declare the program to be unconstitutional under state or federal provisions.

California will be facing a ruling on June 29 in a case filed by Dr. Eduardo Anguizola – who is facing multiple counts of insurance fraud filed by Orange County prosecutors. He has filed a federal lawsuit that claims SB 1160 and Labor Code 4615, the anti-fraud law that took effect January 1, violates his rights to due process of law and to make a contract and to hire and pay his criminal defense attorneys, among other arguments.

His request for a preliminary injunction halting the provisions of SB 1160 is scheduled for hearing on June 29 before Federal Judge George H. Wu. Judge Wu previously ruled on the constitutional challenge to the re-instatement of the $100 lien filing fee as a result of SB 863 several years ago in the Angelotti Chiropractic case.

In 2015 the California Court of Appeal upheld the constitutionality of the IMR process in the publilshed case of Stevens v WCAB.

And earlier this year Daniel Ramirez also lost his constitutional challenge of the IRM/UR process. Ramirez wanted discovery to determine whether the doctor performing the independent medical review was biased or had a conflict of interest. His constitutional challenges were rejected in the published case of Ramirez v WCAB. On the constitutional challenges, the Court affirmed the prior decision of Stevens v. Workers’ Comp. Appeals Bd. (2015) 241 Cal.App.4th 1074 on these issues.

And there seems to be an abundance of such constitutional challenges across the nation.

This week the Pennsylvania Supreme Court agreed with the Mary Ann Protz v WCAB constitutional challenge to the AMA Guides. Protz argued that the Pennsylvania General Assembly unconstitutionally delegated to the AMA the authority to establish criteria for evaluating permanent impairment. The Supreme court held that it does.

And there are numerous other examples.

In 2016 the Oklahoma Supreme Court dealt several blows to the state’s 2013 workers’ comp overhaul by finding unconstitutional a provision of the Oklahoma Administrative Workers’ Compensation Act pertaining to the deferral of permanent partial disability benefits. In Maxwell v. Sprint PCS, (Case Number: 113898), which is representative of a class of several companion cases, the Court ruled that “scheduled members are exempt from the AMA Guides under the Administrative Workers’ Compensation Act,” and that the permanent partial disability deferral provision of statute “is an unconstitutional violation of due process.” In state statute, the term “scheduled member” includes body parts such as arms, legs, toes, fingers, etc.

Last month Circuit Judge Pat Ballard found two provisions of the Alabama workers’ compensation law – the $220 a week cap in compensation for injured workers, and the 15 percent cap on attorneys fees – unconstitutional in the case of Nora Clower vs. CVS Caremark. And because one or more provisions of the law were found unconstitutional, the entire act was struck down. Ballard stayed the order for 120 days to give the Alabama Legislature time to act.

And of course Florida has had an array of constitutional problems. A recent Stetson Law Review article points out that In over three-quarters of a century many constitutional challenges to the Florida Act have arisen. The three main arguments have invariably implicated the rights to equal protection, due process, and access to courts. And last year The state of Florida’s workers’ compensation system suffered another blow when the Florida Supreme Court ruled another part of the state’s workers’ compensation insurance system is unconstitutional.

In a 5-2 decision in the case of Bradley Westphal v City of St. Petersburg the Florida Supreme Court recently struck down a law limiting payments to injured workers for two years, instead ordering that the payments for injured workers should last five years.

On June 29 California will discover if it can withstand its third constitutional challenge to workers’ compensation law in the same number of years.

The firm of Laughlin, Falbo, Levy & Moresi LLP announced the passing of the founding partner, Michael William Laughlin. He was surrounded by his loving family when he passed away on Saturday June 17.

In addition to being a pillar of the legal community, his colleagues say Mike will forever be remembered with the highest regard as a family man, friend, partner, mentor, coach and competitor to many people. He will be greatly missed every day.

A funeral mass will be held on Friday, June 23 at 12:30 p.m. at St. Isabella’s Church (One Trinity Way, San Rafael, CA 94903), after which there will be a celebration of life to be held at Stonetree Golf Club (9 Stonetree Ln, Novato, CA 94945) from 2-6 p.m.

The family has suggested that in lieu of flowers, please consider donations to the Timothy Murphy School in San Rafael.

Mr. Laughlin obtained his undergraduate degree in 1960 from the University of Notre Dame and was a 1963 graduate of the Indiana University School of Law. He has been a member of the California Bar since 1965.

Julius Young provided more information on the WorkersCompZone website.

He tells us that Mike retired a few years ago, but was one of the leading California workers’ comp defense attorneys for decades. Earlier in his career he practiced in San Francisco with the firm Sedgwick, Detert, Moran and Arnold.

Around 1985 he and and a number of his partners left and formed Laughlin, Falbo, Levy and Moresi. Over the years they grew the Laughlin firm to where it now has 160 attorneys and a statewide presence.

Sedgwick, Detert and the Laughlin firm firm became sort of a farm team for leaders in the industry, as former WCAB Commissioners Gordon Taylor and Alfonso Moresi practiced with Mike. Current WCAB Commissioner Jose Razo later joined that firm before his appointment to the board.

Boxer & Gerson LLP law partner Michael Gerson summed up Mike Laughlin this way:

“He was a pleasure to work with and a true gentleman. He was a resolver and not a churner. He was compassionate and concerned with our clients.”

His passing is a reminder that some of the most effective attorney advocates are not always the ones with a blustery, take-no-prisoners approach.