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  • Editor's 2 Cents: I Am Thankful for Many Things
  • Sounding Board: Steve Kline's Report on This Case is Frightening
  • Legal Update: A Split in the Districts
  • Joan Lloyd: Reader Reacts to Article About Person Who Wants to Leave His/Her Job After three Months
  • Fraud Watch: Think Globally...Act Locally
  • Newsflash: Firm Denies Workers' Comp in Racial Killing...Shame on Dollar Tree

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Editor's 2 Cents

I Am Thankful for Many Things

William Nathans
Editor

bill@adjustingworld.com  

  

At this time of year I just want to reflect on what I have to be thankful for. I am thankful for many things. I am thankful for you, the readers of this newsletter, and the fact that you take the time to read Adjusting World and send us your comments when something strikes a chord.

I am thankful for my friends and family who are unwavering in their support. I am especially thankful to Andrea who gave me and the other writers at Adjusting World a forum to educate, inform and opinionate.

Given the current economic situation, I am thankful for having a job. I realize this is an uncertain time for many workers. Even the comp industry has felt the impact.

This is the tightest market I have ever seen. I know people who have entered the job market and it has taken them over three months to find a position.

I hope that our economy will turn around quickly and that we will see even better times ahead for America.

I would also like to take this opportunity to wish all of our readers a happy and safe holiday season.

  

Comments, questions, e-mail me at bill@adjustingworld.com

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Editor's 2 Cents

(Response to Legal Update column "The Inter-Relationship of Workers Compensation and FEHA" November 2008) 

 

Steve Kline's report on this case is frightening.  The specter of an injured worker, who is willing to work, being unable to RTW with restrictions and being left out without remedy reminds me of the evolution of ratings based on prophylactic work restrictions which developed in the 1940s, and dominated WC until 2005, until SB 899 and the use of the more "objective" AMA Guides to determine the extent of permanent disability were enacted.  

This case begs for a remedy, and the resumption of rating work restrictions is the obvious solution. Hold your breath. How it would evolve, I cannot guess. But I do believe this will come back again. It would require a new Rating Schedule, but that is no problem, as restrictions  were "informal" for years and were rated just the same.

Note the "Wage Loss" essay on the state website! 

This is my prediction.

Good luck!

JNL Private Rater. 

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Legal Update

A Split in the Districts

Stephen L. Kline, Esq.
steve@adjustingworld.com

 

For injuries prior to January 1, 2005, do you use the 2005 Rating Schedule or the 1997 Rating Schedule? More specifically, what is the meaning of the words of Labor Code § 4660, “For compensable claims arising before January 1, 2005, the schedule as revised . . . shall apply to the determination of permanent disabilities when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability?” Are permanent disability and permanent & stationary the same?

 

Despite the fact that the number of affected cases are dwindling because of the passage of time, this issue has created a series of conflicting cases from three of the District Court of Appeals.  In the last thirty days, the most recent decision was published. Let’s review the past published cases.

 

The initial opinion was Vera v. WCAB (4th District, 2007) 154 Cal.App.4th 996.  On April 26, 2004 , seven days after the SB 899 became effective, Mr. Vera’s primary treating physician wrote, “it is my opinion that Mr. Vera does currently have the existence of permanent disability. …”  He was not permanent & stationary until February, 2005.

 

The Trial Judge ordered that the 1997 Schedule was to be used.  On Reconsideration, the Panel of Commissioners ruled that the 2005 Schedule applied.  In its published opinion, the Court of Appeals affirmed the Panel by ruling that “we conclude that the treating physician's report must indicate that the claimant has a ratable disability that has reached permanent and stationary status, and that in enacting section 4660, subdivision (d), the Legislature was using the term "permanent disability" as another way of referring to the status of having a ratable disability that is "permanent and stationary. . . The crucial fact for our analysis is that the treating physician's report will describe the applicable impairment and limitations differently depending on whether the old schedule or the new schedule applies.”

 

The next opinion came from the Second District, Genlyte Group, Inc. v. WCAB, (2008) 158 Cal.App.4th 705.   That Court asked the question: “Must a comprehensive medical-legal report or treating physician's report state the injured worker's condition has reached permanent and stationary status to indicate the existence of permanent disability within the meaning of section 4660(d)?”

 

If Vera is to be followed, then the answer should be yes,  However, the Second district reasoned differently.         First they were influenced by Labor Code §3202 (the liberal construction clause).  They didn’t rely on that section.  However, the distinguished the terms of “permanent and stationary” versus “permanent disability” by stating, "We are reluctant to conclude that the Legislature's use of different terms, at different times in the statutory scheme, is meaningless."

 

“Recognizing permanent disability may exist before permanent and stationary status has been reached under the statutory scheme, moreover, is fully consistent with existing case law. In instances of insidious and progressive occupational diseases -- for example, from exposure to asbestos -- permanent disability may be rated and indemnity advances ordered before the employee is permanent and stationary; jurisdiction is reserved pending permanent and stationary status or permanent total disability.”

 

In conclusion,  the matter was remanded back to the trial judge to determine whether the report prior to January 1, 2005 had described the existence of permanent disability.

 

A few months later, the same Court of Appeals Panel reiterated its decision with 

Zenith Ins. Co. v. Workers’ Comp. Appeals Bd. (2008) 159 Cal.App.4th 483.

 

This month, the Third District published its opinion in Lewis v WCAB (3rd Dist, 2008) ---- CCC ----.  They ruled that “a comprehensive medical-legal report or a treating physician’s report need not state that the injured worker’s condition has reached permanent and stationary status to indicate the existence of permanent disability within the meaning of section 4660(d).” following the Genlyte and Zenith and rejecting Vera.

 

The Justices were more impressed with the argument that legislative use of the different terms was for a distinct purpose.  They remanded the decision back to the WCAB to determine “whether a treating physician’s report indicated, based on substantial evidence in light of the entire record, the existence of permanent disability prior to January 1, 2005.”

 

While the Vera argument is not overruled (only the Supreme Court can do that), the trend does seem to favor the Genlyte- Lewis interpretation.  Substantial evidence is the critical measure for the review of the medical report.  Clearly, the “check the box” reports are not compliant.   However, the amount of detail that the report must have to be substantial evidence is the proponent’s burden to be determined by the trial judge ‘s discretion.   Giving the Judge the evidence needed to support his/her decision is critical for the trial attorney.

 

This issue will be with us through most of 2009.  Weighing the value differential between the schedules may be the most important factor in determining the resolution of these cases.

May your holidays and New Year be bright, safe and joyful.

Thanks for your attention.

If you have any questions, please feel free to contact me at my new email address slkesq@me.com.

 

 

 Don't miss Steve's Legal Update on February 27th at the SBICA Luncheon.

See the upcoming events calendar for more information......

Have a question for Steve?

Don't hesitate to ask.  Email it to: steve@adjustingworld.com and get it answered right here.

 

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Reader Reacts to Article About Person Who Wants to Leave His/Her Job After Three Months

 In last month’s column I responded to a professional who wanted to leave her job after three months because a bigger, more desirable job opened up unexpectedly. But she worried about

the wrath of her employer. The following is a reader’s response to that column.

More >>

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Think Globally...Act Locally

David Dindak

Coast to Coast Data Search

david@2mypi.com

 

Last weekend I was walking through a farmer’s market.  Walking by stalls of farmers who had come from as far away as Stockton and Modesto to sell their produce, I thought about all the

Mom and Pop shops of the world that are being edged out by the Big Box stores. 

 

Believe it or not, the small grocery store is not the only Mom and Pop.  Small businesses are everywhere.  We are often seduced by the “bigness” of an operation thinking that bigger is

better.  Well a potato is a potato no matter where it comes from…..but I digress.  

 

Just because a company is bigger does not mean it is always better.  Example: small

investigation firms have all the same bells and whistles as large companies.  But the

advantages of the small local firm can far outweigh the large national company. 

 

A local California firm knows the lay of the land because they have been working here for

a number a years.  It really helps during the course of a Sub Rosa when the investigator

knows that in a few blocks the Claimant will have access to a freeway and the gap between

them needs to close, that parallel streets are one-way, or the location of a medical

appointment has 3-4 entrances with multiple parking options and might require the use

of a second investigator instead of risking the possibility of losing the subject. 

 

Local investigators are more accessible.  I am aware of two out-of-state firms that schedule assignments weeks down the road so they can work as many cases in a particular area as possible.  Then they will bring in a team of investigators, sometimes from outside the state, spending several days migrating from one area to another in order to fulfill authorized time. 

 

Utilizing local talent increases your chances for success.  If you poll your local investigators

you will likely find that, unbeknownst to you, on a regular basis, more surveillance time is

put into your assignments than what is reflected in the service invoice.  We call checking on assignments beyond the authorized time “fishing”.  Sometimes we get lucky and sometimes

we don’t, but what a great feeling when we do.

 

Think about it – we have twenty-four hours in a day, seven days in a week, and fifty two

weeks in year to choose when to use the 2-Day Sub Rosa assignment you have given.  Consequently, we might drive by a Claimant’s residence on the way to Safeway or the mall,

or sit down the street for a couple of hours in between appointments.  There have been

countless occasions over the years where we have obtained good footage long after the

original assignment had ended. 

 

We can also split up the time allotted, returning to the surveillance site at various times. 

 

Investigation Panels are always a good idea.  The panel provides an opportunity to compare

the depth and expertise of agencies. Working with several companies (large and small), helps

to weed out firms that are not providing good service. 

 

Finally, there is another reason to look at using local companies.  Supporting businesses that

are located in California is a good investment in your community. 

 

Buy locally, it’s better and stimulates our local economy.  

Enjoy the Holiday Season.....

 

If you have any questions about Sub Rosa, AOE/COE, Fraud or Investigation, email me. at david@2mypi.com   

David Dindak is the CEO of Coast to Coast Data Search, an investigation firm that has successfully

serviced the insurance industry for the past 20 years.  He is a licensed PI and a continuing education

trainer in Investigation and Fraud. The above article is from the 2008 Investigation & Fraud Training Series. 

This training series is a free and is provided to companies onsite.

 

For additional information on Coast to Coast Data Search and/or how to bring the 2009 Investigation and

Fraud Training Classes to your company. Visit the website at: www.2mypi.com or call (800) 282-6278.



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Christmas Party Taking a Holiday Amid Downturn

This year, the Grinch may not have stolen Christmas, but he definitely took the Christmas party.

More >>

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Spiritual Etiquette at Work

Commentary: Faith friendliness in the workplace does not mean faith favoritism. Ford Motor Co. has

a good rule: If you want your faith group to be in...

More >>

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Two California Men Charged in $18 Million Fraud Scheme

Two Southern California men have been charged with conspiring to defraud the State Compensation

More >>

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Firm Denies Workers' Comp in Racial Killing

Taneka Talley was stabbed to death in March 2006 while she was working as a clerk at a Dollar Tree

store in Fairfield. Her killer's only motive, prosecutors say, is that she was African American. that's

also the reason the store's workers' compensation insurer is denying $250,000 in death benefits to

Talley's 11-year-old son.

More >>

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Shame on Dollar Tree

"Do the right thing for the right reasons," Dollar Tree instructs its employees, as part of its succinct

statement of corporate values. Those values seem to have been lost on the company's top executives

More >>

   

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Results of the November Poll
Was the AIG Bailout Good for America?

Yes                              36%

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