Professionals In Workers' Comp. Fresno

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First Aid: More Than a Band-Aid Explanation By Thomas L. Witt, Assistant Vice President,  Zenith Insurance Company   The Problem Who would have ever thought that something as innocuous and simple as first aid would be so controversial and occasionally contentious between employers and workers compensation carriers?  The issue never goes away.  Questions repeatedly crop up year-to-year, year in and year out.   We’ve put men on the moon, ended the cold war, and experienced e-commerce, but can’t seem to get a handle on first aid. Other problems remaining to be solved are a cure for cancer, peace in the Middle East, and getting the Cubs into the World Series.  I will stick to clarifying the first aid only.   First Aid Defined With the amendment of California Labor Code (the “Labor Code”) §5401 pursuant to AB 749 effective January 1, 2003, the Labor Code definition of first aid is now substantially consistent with all other sources, including Administrative Director Rule 9780(d).  The Labor Code now defines first aid as follows:   “First aid" means any one-time treatment, and any follow-up visit for the purpose of observation of minor scratches, cuts, burns, splinters, or other minor industrial injury, which do not ordinarily require medical care. This one-time treatment, and follow-up visit for the purpose of observation, is considered first aid even though provided by a physician or registered professional personnel. "Minor industrial injury" shall not include serious exposure to a hazardous substance as defined in subdivision (i) of Section 6302.   Controversy and Problem Further Defined This rather simple definition has generated much controversy.  While this definition is seemingly clear, there are some ambiguities, and many insurance carriers have unwittingly liberalized the interpretation.  This has generally been done to appease employers so that they can control a greater percentage of their minor medical expenses. The perception among employers is that this practice reduces loss experience and premium rates. Allowing employers to handle their own first aid can be beneficial, but can be subject to abuse.   Some employers, frequently with the acquiescence of their insurance carrier, stretch the limits of true first aid.  They handle and pay for claims that extend well beyond the spirit and intent of the law.  It is not uncommon for many employers to attempt to handle some injuries as first aid, only to discover weeks later that they are incurring continuing medical expenses at which time the injury is reported to the carrier.    At this point, medical treatment may be out of control and rehabilitating the situation is difficult.  Additionally, if the employer erroneously interprets an injury as first aid only, and fails to provide the injured worker with a Claim Form, the employer and his carrier could be faced with a presumption of compensable injury issues under Labor Code §5402.    Moreover, employers that repeatedly abuse the interpretation and handling of first aid may skew their loss history and experience modification for a more favorable premium.  Some primary care physicians, in an attempt to curry favor for the employer’s referrals for treatment of work injuries, have been all too cooperative in knowingly labeling obvious medical treatment as first aid.  Whether this constitutes a form of premium fraud is outside the scope of this article and will not be addressed here.    Employer Reporting Requirements   All claims, including first aid, should be reported to the carrier.  There is conflicting authority concerning the requirement to report first aid claims.  Labor Code §6409.1(a) indicates that every employer shall file a complete report on every occupational injury or illness, which results in lost time beyond the date of injury, which requires medical treatment beyond first aid. This contrasts with the position held by the Workers’ Compensation Insurance Rating Bureau (the “WCIRB”).  Their position is that every claim must be reported to the carrier, even those requiring first aid only.  This is because of experience rating considerations.   This is outlined by the WCIRB bulletin dated October 31, 1994.  A recent conversation with a WCIRB official confirms that this continues to be the policy.  If an injury is first aid only, an Employee's Claim form (DWC-1) does not have to be provided to the employee.  A claim form must still be provided in cases where injury results in lost time beyond the date of injury or medical treatment beyond first aid.  Doctor Reporting Requirements   Labor Code § 6409 further specifies that any physician who treats an injured worker is to complete "Doctor’s First Report of Injury" and file it with the claims administrator within five days of the initial exam.  Every work injury or illness treated must be reported, including first aid.  There are no exceptions.   Employer and/or Physician Penalties A May 8, 2003 California Department of Insurance (“CDI”) notice indicates that the CDI intends to crack down on employers and physicians for failure to report work injuries.  Failure to file a timely report can lead to a civil penalty.   According to the CDI notice, the CDI and the Department of Industrial Relations report that some employers have cut improper deals with physicians so that the employer can dictate how injuries or illnesses are classified and reported by the doctor.  In addition, some employers have improperly requested that the physician send the Doctor’s First Report to them, but not to the claims administrator, even when an injury clearly is beyond first aid. The CDI Fraud Division says such deals are being marketed as a way for employers to reduce or minimize increases in workers’ compensation premiums, but notes that they may result in criminal violations, both for premium fraud and fraudulent denial of workers’ compensation benefits to injured workers.  An April 15, 2003 CDI press release further details where a medical provider was fined $900,000 for failure to report first aid to insurance carriers.       Examples of First Aid   Any perceived ambiguity of the first aid definition is clarified by OSHA’s recordkeeping guidelines, which refer to federal regulations (29 C.F.R. §1904.7(b) (5) (ii)) for a specific list of what may be considered first aid: Using nonprescription medication at nonprescription strength Administration of tetanus immunizations (other immunizations, such as Hepatitis B or rabies vaccine, are considered medical treatment) Cleaning, flushing or soaking wounds on the surface of the skin Using wound coverings such as bandages, Band-Aids, gauze pads, etc.; or using butterfly bandages or Steri-Strips (other wound closing devices such as sutures, staples, etc., are considered medical treatment) Using hot or cold therapy Using any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc. (devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment for recordkeeping purposes) Using temporary immobilization devices while transporting an accident victim (e.g. splints, slings, neck collars, back boards, etc.) Drilling of a fingernail or toenail to relieve pressure, or draining fluid from a blister Using eye patches Removing foreign bodies from the eye using only irrigation or a cotton swab Removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs or other simple means Using finger guards Using massages (physical therapy or chiropractic treatment are considered medical treatment for recordkeeping purposes) Drinking fluids for relief of heat stress   Please note that according to the OSHA recordkeeping guidelines, if a treatment is not contained in the list above, it is not considered first aid.   Examples of Medical Treatment   The OSHA guidelines go on to indicate that, “Medical treatment means any treatment not contained in the list of first aid treatments.”  The following examples are generally medical treatment and almost always recordable:   ·         Treatment of infection ·         Chipped or broken teeth ·         Physical therapy or chiropractic care ·         Application of sutures (stitches) or staples ·         Removal of foreign bodies embedded in eye ·         Using any support devices with rigid stays or other systems designed to immobilize parts of the body ·         Administration of certain immunizations, such as  Hepatitis B or rabies vaccine ·         Cutting away dead skin (surgical debridement) ·         Positive x-ray diagnosis (fractures, broken bones, etc.) ·         Admission to a hospital or equivalent medical facility for treatment ·         Treatment of 1st, 2nd or 3rd degree burns that require days away from work, restricted work, transfer to another job, or medical treatment ·         Removal of foreign bodies from a wound; if procedure is complicated because of depth of embedment, size or location. ·         Use of prescription medication or non-prescription medication at prescription strength  Extent of injury, regardless of type of treatment, can be considered a recordable injury under OSHA guidelines and, therefore, reported as a work injury.  These include any injury or illness that results in one or more of the following:   Death Days away from work Restricted work Transfer to another job Medical treatment beyond first aid Loss of consciousness, or Diagnosis of a significant injury or illness.   Please note that, according to OSHA guidelines, a visit to a physician or other licensed professional for observation or counseling, while not specified as first aid, does not constitute medical treatment.  Likewise, any diagnostic procedure (such as x-rays and blood tests, including administration of prescription medicine for diagnostic purposes) conducted to determine whether the employee has an injury, while not specified as first aid, does not constitute medical treatment.  Conversely, medical treatment can be provided to employees by laypersons; i.e., someone other than a physician or registered medical personnel.   Lastly, Labor Code §6409.3 addresses treatment for pesticide poisoning, indicating, “In no case shall the treatment administered for pesticide poisoning or a condition suspected as pesticide poisoning be deemed to be first aid treatment”.     Conclusions I am hopeful that is clarifies many of the differences between first aid from medical treatment so that both employers and carriers will have a consistent guide.  While some insurance carriers have developed their own definitions, compliance with existing state statutes and guidelines as outlined here is a far better policy for employers, carriers, and most importantly, the injured workers. Carriers should work closely with their insured employers and give them the choice concerning whether they prefer to pay for their own first aid.  There should be proactive communication concerning the process and what constitutes first aid.   The test of, “If it’s not in a first aid kit, then its medical treatment,” is a good general guideline but not completely accurate.  These guidelines give the complete picture of all you wanted to know, but were afraid to ask.     IMPORTANT NOTICE: Please note that the information provided here is not to be construed in any circumstances as legal advice.  You are urged to consult with a legal professional for an up-to-date analysis of all current laws and regulations as they pertain to first aid and recordkeeping.  The information provided here is only current as of January 12, 2006 and may not identify every legal consideration with respect to recordkeeping and first aid.     Thomas L. Witt Assistant Vice President Zenith Insurance Company Fresno Regional Office (559) 449-4803 twitt@thezenith.com            11-01-00 (updated 1-31-03 and 2-27-08)

Supplemental Job Displacement Benefits (SJD Benefits) By: Michael McDonald, McDonald Law Corporation                                                         THE VOUCHER   ü      Claims Adjuster shall provide nontransferable voucher for education-related retraining or skill enhancement within 25 calendar days from the issuance of a PPD Award by a WCALJ ü      Disbursement of the voucher may be made to either the injured worker upon presentation of receipts and documentation, or … ü      Disbursement of the voucher may be made as direct payment to the provider of the education-related training or skill enhancement and/or to Vocational Rehabilitation Return to Work Counselor ü      The voucher must indicate the appropriate level of money available to the employer under Labor Code § 4658.5 ü      Use the proper form ü      The “school” must be state approved Claims adjuster shall issue payments within 45 days from receipt of the completed voucher, receipts and documentation. ===================================================   Wiley v. WCAB and Brooks v. WCAB        The Court of Appeal, 5th App. Dist., ruled in Wiley v. WCAB (5/21/2008) F053859, an unpublished decision, that the 2-yr. TTD limitation for an injury between 4/19/04 and 12/31/07 (LC §4656 (c)(1)) included payments from the 1st payment of the employer's industrial disability leave (IDL) program.  Wiley was an employee of the California Department of Corrections and Rehabilitation (CDCR), a state agency.  As a part of the package of benefits afforded state employees, a separate program apart from the WC program allowed IDL benefits.  SCIF administered the WC benefits.  The applicant was injured on 12/29/04 and IDL benefits were paid at his full net take-home salary from 12/30/04 to 12/29/05.  Thereafter, SCIF paid WC benefits at $728/week (less than his net take-home salary) from 12/30/05 until 12/29/06.  The parties agreed the applicant was not P&S on 12/29/06, so he would be due additional TTD benefits but for SCIF's allegation that the 2-yr. limitation ended on 12/29/06 because the total amount of benefits paid including IDL was 2 years.  The Judge agreed with the applicant and found that SCIF, independent of the IDL benefits, owed another year of TTD (the net result would be 3 years of benefits for the applicant including IDL).  The Judge reasoned that the IDL acted like a salary continuation benefits afforded safety officers under LC §4850, so it was a separate class of benefits than TTD in WC.  SCIF petitioned the WCAB and the Panel agreed with SCIF that the 2-yr. limitation included the IDL benefits and SCIF owed nothing further.  The applicant filed a Petition for Writ of Review.  The Court granted the Petition.  The Court relied on a published opinion by the same App. Dist. (5th) earlier this year, Brooks v. WCAB (4/18/2008) 161 Cal.App.4th 1522, 75 Cal.Rptr.3d 277, so let's review that decision preliminarily.      Brooks also was a CDCR employee who was injured on 10/25/04.  Again, she received IDL benefits from 10/26/04 until 10/25/05.  SCIF paid TTD until 10/25/06 and Brooks contended she was entitled to another year of TTD from SCIF (It was given that she was still TTD after 10/25/06.).  The Judge found that IDL benefits were the "functional equivalent" of TTD, so that SCIF was correct in terminating benefits on 10/25/06.  Brooks filed a Petition for Reconsideration in which the Panel agreed with the Judge.  Brooks' contention was that IDL was "made under different rules, to a limited class of employees, at different rates and for different periods."  The Judge in his Report on the Petition for Reconsideration referenced Government Code §19870 (a) which defined IDL payments as TTD in the LC.  Even after citing the liberal-construction statute, the Court did not extend TTD when it was not authorized under the law.  The Court went through a lengthy discussion of IDL benefits to show that they were essentially the same as TTD benefits.      The Court also referenced State of California v. WCAB (Ellison) (1996) 44 Cal.App.4th 128, 51 Cal.Rptr.2d 606, to make an interesting point about penalties.  At the time of Ellison, LC §5814 provided a 10% penalty on "the entire amount ultimately awarded for the particular class of benefit which has been unreasonably delayed or withheld."  With the enactment of SB 899, LC §5814 imposes a 25% penalty, up to $10,000, on "the amount of the payment unreasonably delayed or refused."  The WCAB and Court in Ellison based the penalty on the statutory TTD rate, not on the benefits necessarily paid.  Therefore, if the penalty applies, it will not be based on a higher rate typically paid for IDL, but rather the statutory TTD rate under the LC.  The Brooks Court was also impressed that Brooks received a higher rate under the IDL program than was statutorily mandated under the LC for TTD.  An employee receiving IDL continues to be considered an employee and enjoy medical benefits, which are not mandated under the LC.      Conclusion—Following Brooks, the Wiley Court found IDL and TTD benefits to be the same for purposes of establishing the initial payment date referred to in LC §4656(c)(1).  SCIF did not owe any additional TTD.  It should be noted that this discussion only applies to DOI between 4/19/04 and 12/31/07.  For all other DOI's, there is a 2-yr. aggregate limitation on TTD paid during the 1st 5 years of the injury regardless of when the payments are made.      This decision and Brooks open the door for an expansion of what constitutes TTD, an issue which coincides with LC §4909 which allows the employer to take credit for payments voluntarily made.  LC §4909 has been used to allow an employer to take credit for payments made from a disability plan.  In a similar vein, the date disability benefits paid from short-term or long-term disability plans are 1st provided by an employer to the applicant may be argued as the start date under LC §4656(c)(1).  Many of these plans operate like the IDL in that the disability rate is determined on the salary paid.  There are certain limitations to allowing an employer to take the credit under LC §4909 such as having the plan fully funded by the employer and certain notices need to be sent to the applicant advising that the benefits will be taken as a credit in WC.  Nevertheless, it is important to know if the applicant received disability payments through a plan funded by the employer to argue the commencement date of TTD.  I caution that there have been no cases on this issue yet, but it appears ripe for presentation under the logic of Wiley and Brooks.      For those of you who received my 6/16/07 update on the Hawkins decision (titled, "2-Yr. TTD Cap Explained in En Banc WCAB Opinion"), you may recall that I brought up another point that LC §4656(c)(1) does not specify who makes the payment.  In Hawkins, the EDD initiated payments while the case was being litigated on injury AOE/COE.  The issue is whether the commencement date should start when the EDD started making payments.  The Hawkins Panel did not discuss the issue at all, but it appears from Wiley and Brooks that the Courts are willing to hear arguments that the source of the funds from which the applicant receives benefits does not necessarily have to come directly from the WC carrier/TPA.  Again, no case of which I am aware has decided this issue.  If you would like my update on Hawkins, I will forward it at your request. "This article is my interpretation of the law and is not intended to be legal advice for any particular case.  However, please do not hesitate to provide your comments or ask questions."  - Nigel Scott Baker, Atty. at Law, P.O. Box 1797, Thousand Oaks, CA 91360, (805) 375-1347,  e-mail: nigel.baker@att.net.    ================================================= Exercising While on Vacation  is Compensable!  by Nigel Scott Baker   The Court of Appeal, 2nd App. Dist., decided exercising while on vacation was a compensable industrial injury in Tomlin v. WCAB (B199429).  The applicant was a member of Beverly Hills Police Department's (BHPD's) SWAT team.  He was on call 24/7 (except while on vacation) and was voluntarily assigned to SWAT.  He was required to pass a physical fitness test annually which involved a 1/2 mile run, climbing a wall and dragging 150 pounds.  If he failed to qualify, he could still work within BHPD and other departments did not require the same physical fitness test.  He trained 4 days each month and was sent to Camp Pendleton and out of state for training.  He maintained physical fitness by running, bicycle riding and weight lifting with other SWAT team members.  He was not paid for the workouts.  He regularly ran while on vacation.  Over the last 15 years, he ran 3-4 times/week for 3-6 miles.  He was advised in 11/05 that an annual physical fitness test would be administered in 1/06.  He planned to train for the test while on vacation from 12/26/05 to 1/11/06.  He was not told to train during the vacation by his supervisor.  He did not tell his supervisor that he would train while on vacation, but believed that he was expected to continue to train for the test while on vacation.  When on vacation in Wyoming, he broke his left ankle on a 3-mile run and on a slippery sidewalk.  He could not return to modified work until 3/16/06 (after surgery).  Eventually he returned to full duty.  He could not take the 1/06 physical fitness exam, obviously, but passed a subsequent test.  He filed a claim for WC benefits which was denied by the employer because he was voluntarily participating in an off-duty recreational or athletic activity under LC §3600(a)(9).  The Judge agreed noting that under the test explained by the Court in Ezzy v. WCAB (1983) 146 Cal.App.3d 252, 48 CCC 611, the applicant's belief that BHPD expected him to jog during his vacation was "not objectively reasonable."  The Judge "... doubt[ed] the employer expected the employee to be jogging in strange terrain, hundreds of miles away while on vacation."  The Judge expounded in the Report and Recommendation on the applicant's Petition for Reconsideration that if this injury were work-related, "... then every SWAT Officer in this state is covered for [WC] 24 hours a day, anyplace in the world."  The WCAB agreed with the Judge.  The applicant filed his Petition for Writ of Review which was granted by this Court of Appeal.   The Court noted that LC §3600(a)(9) provided that off-duty recreational, social, or athletic activity which results in injury is not industrial unless the activities are a reasonable expectancy of, or expressly or impliedly required by, the employment.  They noted the 2-prong test of reasonable expectancy in Ezzy requires (1) whether the employee subjectively believes his or her participation in an activity is expected by the employer and (2) whether that belief is objectively reasonable.  The only issue before the Court was the 2nd prong as to whether the applicant's belief was objectively reasonable.  The Court found a case very similar in facts, Wilson v. WCAB (1987) 196 Cal.App.3d 902, in which an officer of a special emergency reaction team suffered an industrial injury while running after one of his shifts.  In that case, too, the Judge and WCAB felt the injury was non-industrial and the Court of Appeal overturned them.  The Justices felt that the applicant's training activities when he was injured were a reasonable expectancy of his employment because he was required to pass the physical fitness test and needed to be ready for it.  They differentiated from cases cited by the defendant (City of Stockton v. WCAB (2006) 135 Cal.App.4th 1513 and Taylor v. WCAB (1988) 199 Cal.App.3d 211) which involved police officers playing basketball games while off duty.  These officers were not members of special tactical units and the police department involved had a general expectation that officers should keep physically fit.  However, they were not required to take formal physical fitness tests or given on-duty time for physical fitness training.  The officers in Taylor were warned that injuries sustained in athletic activities that were not expressly approved by the Department in advance were not compensable.  There was an amicus brief filed by the County of LA which cited Hermann v. City of LA (2000) 65 CCC 197 which involved a CHP officer who failed a fitness exam and engaged in a CHP-approved physical fitness program that included up to 40 minutes of running/day.  By 1990 he became such an avid runner that he was training 50-60 hours/week for "ultra" marathons of up to 100 miles and suffered a cumulative stress injury to his right foot and big toe that was aggravated by running.  The WCAB found that was not an industrial injury because he was exercising "well in excess" of the requirements imposed by the CHP.  The Court in this case said that the applicant's fitness regimen was not grossly disproportionate to the training necessary to pass the tests.  He also did not suffer a cumulative stress injury that was aggravated by running long distances.  The Court dismissed the argument that the applicant was on vacation while injured because "... he was engaged in training and maintaining fitness for an imminent, employer-mandated physical fitness test."  It also did not matter that the applicant enjoyed running.  The issue was whether his running at the time he was injured was a reasonable expectancy of his employment.  His testimony that he was running to train for the employer-mandated test was uncontroverted.  The Court did not give merit to the Judge's statement that he was running in strange terrain and hundreds of miles away because it did not matter under LC §3600(a)(9).  All that matters was whether the activity was a reasonable expectancy of his employment.  Therefore, he could be jogging anywhere and suffer an injury and it would be compensable.   Fortunately for the City (should it elect to file a Petition for Review with the Supreme Court) there was a dissenting Justice who felt it was significant that the applicant was engaged in a recreational activity 1,000 miles from his place of employment.  This Justice noted there was nothing to indicate BHPD objectively believed his running while on vacation in Wyoming in 12/05 was an expectancy of his employment.  BHPD had no notice that the applicant intended to run on a slippery sidewalk in the winter in Wyoming.  There was nothing in the record that suggested he entertained an objectively reasonable belief that running under those conditions were expected of his employment.  The Justice noted that the legislative intent of LC §3600(a)(9) was "... to limit, rather than to expand, the scope of liability that an excessively liberal application of the basic test might support."  (City of Stockton, supra, 135 Cal.App.4th at p. 1524).  BHPD provided training 4 days/month in addition to sending him to other training activities and as a matter of law it was not objectively reasonable to conclude the applicant's specific form of recreational running was expected by BHPD.  Under the Court's current opinion, injury suffered during a myriad of recreational activities would be covered as each would assist the SWAT officer in passing the fitness test (i.e., snow skiing, mountain biking and mountain climbing).  That holding runs against the limitations set forth in LC §3600(a).  This dissenting Justice distinguished Wilson because Wilson went to his local community college to run on a track and did not go on vacation in another state like the applicant.   This opinion seems to be limited to those officer positions in which physical fitness test is mandated, but I'm sure you can see where it can be expanded to non-police/safety officer positions.  There was no indication one way or the other as to whether anyone testified on behalf of BHPD, but it appeared not.  It is unclear, obviously, what effect the supervisor's testimony that there was no expectation of the applicant to train while on vacation would have had on this Court if it was not considered.   Since it was noted by the Court in reviewing the Taylor, a recommendation is to warn officers (orally and in writing) that injuries sustained in athletic activities that are not expressly approved by the Department in advance are not compensable.  It is certainly not a fail proof remedy to an industrial finding, but just another factor to weigh in favor of the employer.   "This article is my interpretation of the law and is not intended to be legal advice for any particular case.  However, please do not hesitate to provide your comments or ask questions."  I'd also like that you, obviously, put in my contact information - Nigel Scott Baker, Atty. at Law, P.O. Box 1797, Thousand Oaks, CA 91360, (805) 375-1347,  e-mail: nigel.baker@att.net ======================================== By: Eric V. Jackson * Tobin Lucks LLP Foster v. WCAB The Third District Court of Appeals held that an applicant is not entitled to multiple two year periods of TTD per Labor Code §4656(c)(1) when two separate injuries combined to make the applicant temporarily disabled.   Foster had two separate specific injuries;  one in February 2005 to his right shoulder, the second on April 13, 2005 to his right shoulder, along with his neck and elbow. He returned to light duty following the first injury but could not return to work following the second. The WCJ found that Foster became unable to work in April 2005 as a result of both of his injuries.   The WCAB ruled "Where independent injuries result in concurrent periods of temporary disability, the 104 week/2 year limitation likewise runs concurrently.   To determine the impact of Section 4656, "in a case involving multiple injuries, the evidence must be examined to determine whether any periods of temporary disability are distinct and independent, staggered or entirely overlapping."   As both of Foster’s injuries caused the need for TD starting in April 2005, the LC §4656 periods of TD for both injuries ran concurrently from April 2005 to April 2007. Therefore, Foster was not entitled to TD beyond April 2007 even if he was not permanent and stationary for all of his body parts by that time.   This holding does not mean that in every multiple injury case there is only one 104 week/2 year period of TD. Each multiple injury case will have to be analyzed separately to determine if the injuries caused a concurrent period of temporary disability or if there are separate periods. For example, if an applicant had two separate injuries to two separate body parts and misses time from work only for separate surgeries, there could be two "distinct and independent" TD periods.