Author Archives: Gregory Grinberg

Applicant Immigration Status Saves Employer From TTD

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What happens when federal immigration laws overlap with California workers’ compensation?  A blog post, that’s what!  Let’s say an injured worker is evaluated by her physician who provides work restrictions.  The physician notes that, if the employer can not find work for applicant within his prescribed restrictions, the applicant is to be considered temporarily totally disabled.

The employer has a job waiting for applicant well within the doctor’s restrictions, but then comes the hiccup – applicant is an illegal immigrant and has no documentation of her right to work in the United States.

At trial the applicant’s attorney argues that no work is available for applicant, so she is entitled to TTD.  Defendant, of course, argues that it is ready and willing, but barred by federal law and applicant’s own actions in refusing to comply with United States immigration laws.

These are the facts of Sarahi Cubedo v. Leemar Enterprises, Inc. (a 2011 panel decision).  The Cubedo panel reversed the Workers’ Compensation Judge, ruling that if “defendant made a legitimate offer of modified work that applicant could not accept solely because of her residency status, defendant is not alternatively liable for temporary total disability benefits.”

In so ruling, the Workers’ Compensation Appeals Board relied on the case of Del Taco v. Workers’ Compensation Appeals Board (Jorge Gutierrez), which held that, with regards to entitlement to vocational rehabilitation services, if immigration status is the only bar to an applicant’s return to work, the injured worker is not entitled to vocational rehabilitation.

Once in a while, your humble blogger likes to report on the further developments of Labor Code section 4658(d).  If a worker’s immigration status prevents him or her from accepting an employer’s timely offer to return to the same, modified or original duty, will the employer still receive the benefit of a 15% decrease in permanent disability payments?  Or will the section just be held inapplicable?

If you’ve dealt with this and have a story to tell, don’t hesitate to drop your ever-attentive blogger a line: gregory@grinberglawoffice.com.

Hearing Representative Misses Again

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Things don’t seem to be going too well for a certain hearing representative struggling to retain the privilege of appearing before the Workers’ Compensation Appeals Board.  A recent en banc opinion dismissed his petition for reconsideration.

Previously, this blog noted the gears starting to turn in this matter, when the WCAB gave notice that it “may suspend or remove” his privileges.  Having no-doubt consulted the “kitchen sink” book of arguments, this hearing representative contended, among other notions, that the whole WCAB is unconstitutional.

The WCAB reminded the hearing representative that reconsideration is only an appropriate remedy when there is a final order (as my readers are well aware) which there had not been.  The WCAB also noted that the petition was not timely, having been filed more than 25 days after the September notice of hearing.  Filing untimely petitions is one of the allegations against this hearing representative.

Is something happening in California?  Governor Brown vetoes anti-employer legislation, the Court of Appeal allows a malicious prosecution case to go forward against an applicant’s attorney, the Supreme Court lands right on COLA… is this the start of a new trend?

Your beloved blogger is too much of a cynic to think so… and time may yet rain on this proverbial employer’s parade.  But one thing appears certain: California’s businesses, though abused and slandered up and down the state, still have some fighting spirit in them and, at least for now, that spirit is shining through.

Cumulative Trauma Claims and the Fired Employee

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When an employer-employee relationship ends, the distance between the two is often enough sprinkled with the ashes of a burnt bridge.  Much like high-school dating, the two can sometimes “still be friends,” but generally there is a screaming match, some crying, and a lot of poisoned words, which may or may not include the spilling of secrets.

That being a tale as old as time, the legislature included as a defense to workers’ compensation claims Labor Code section 3600(a)(10), which bars claims made after termination of the employment relationship.

In the case of Jesus Constanza v. The Torrance Co. (a July, 2011 panel decision), the Workers’ Compensation Judge and the Workers’ Compensation Appeals Board had a rather applicant-friendly interpretation of section 3600.  (A special thanks to Arlene Lea of Sacks & Zolonz for providing me with a copy of the panel opinion.)

Applicant, of no relation to this blogger’s favorite Seinfeld character, worked as a waiter for defendant, when he allegedly hurt his back lifting a box of syrup.  He saw a doctor for back pain, but did not miss any time for work or inform his employer.  (It is unclear, from the panel opinion, if the record of the doctor’s visit merely reflected a hurt back or also a description of how the back came about to be hurt.)

As applicant claims, he continued to have increasing back pain until he was fired in February of 2008.  Defendant was prevented by the WCJ and the WCAB from presenting evidence of the reason for the termination of employment, because applicant testified that the reason was for serving tainted food.  I suppose we will never know if there were other reasons…

After finding himself with an abundance of free time, applicant went to a physician who, in that same month, declared that applicant had sustained a cumulative trauma and was temporarily disabled.

The WCJ ruled and the WCAB affirmed that the section 3600(a)(10) defense was not available because applicant became aware that he had an industrial CT injury only after being fired (See the exception under section 3600(a)(10)(D).)

Just to clarify – applicant feels back pain after lifting a box at work, feels increasing back pain from that point while working, then only after being fired for (at the least) serving tainted food, suddenly realizes the work was causing him to sustain injury.  Meanwhile, the defendant was not allowed to prove that applicant had credibility issues.

However, under Labor Code section 5412, “[t]he date of injury [for a CT] is that date upon which the employee first suffered disability … and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his … employment.” (Emphasis added).

It appears that this WCJ and this WCAB panel is content to let the duty of reasonable diligence, and the defense of section 3600(a)(10) endure death by pieces.

The Court of Appeal and the Supreme Court both denied review.

TSA Machines: the Asbestos Litigation of the Future?

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For all its harmful effect, asbestos has a wonderful property which prompted its frequent use – it is resistant to fire, heat, electrical and chemical damage, making it ideal for insulation purposes.  The Federal Government was well aware of its benefits, and required government contractors building ships for the United States Navy to use asbestos to, among other things, prevent fires aboard-ship.

Fast-forward several years: decade after decade of asbestos litigation burdens employers, the legal system, and our daytime and midnight television commercial space while the Federal Government which mandated the use of asbestos walks away, the words “sovereign” and “immunity” heard between laughs.

Recently, your easily alarmed and somewhat paranoid blogger started thinking about this upon seeing this story.  It appears that more and more concern is being raised about the possible cancer-causing effect of the Transportation Security Administration’s full-body scanners.  According to Dr. Edward Dauer, head of radiology at Florida Medical Center in Fort Lauderdale, the full-body scanners pose a threat to those over 65 years of age and women genetically at risk of breast cancer.  The radiation could also imperil the lens of the eye.

Frequently enough, California employers send their employees abroad or even to other parts of California by flight.  Conferences, training sessions, meetings, and presentations might require an employee to take to the skies countless times a year.  A certain George Clooney film immediately comes to mind.

And, as California retains jurisdiction over all injuries that occurred and/or those in which the contract of hire was completed in California (see Labor Code section 5305) employers might soon enough find themselves before a Workers’ Compensation Judge, hearing the theory of how all those client meetings all over the country exposed applicant X to so many scanner machines, causing this cancer or that.

Hopefully, the machines are harmless to the body; both to flyers and to California’s self-insured employers and insurers.  If they are not, we can only hope that the Federal Government will not walk away from the mess it created, leaving private-sized employers to shoulder a federal-sized problem.

Permanent Total Disability for Non-Industrial Causes

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California Labor Code section 4662 allows for a presumption of total permanent disability in cases of the loss of sight in both eyes, loss of use of both hands, practically total paralysis, and brain injuries resulting in mental incapacity or insanity.  Otherwise, “permanent total disability shall be determined in accordance with the fact.”

Originally part of the labor code since 1917, section 4662 was meant to provide for those completely devastating cases, where the employee reached permanent total disability in the course of service to the employer.  However, applicant’s attorneys have a more “equitable” use for this section.

In the case of Jesus Cordova v. Garaventa Enterprises (2011 panel decision), applicant sustained an injury to the cervical spine, lumbar spine, and left upper extremity when he fell off a tractor, yet held onto the steering wheel, causing his torso to twist.  The Workers’ Compensation Judge awarded applicant 100% PD, reasoning that his medically imposed physical restrictions, combined with the opinions of applicant’s vocational rehabilitation expert, rendered him completely unemployable.

Defendant naturally argued that applicant’s failure to learn to speak English (dare your humble blogger point out applicant’s 15 years of working in the United States?) and the applicant’s lack of success in adult education courses were not its fault.  (In fact, if “[a]pportionment of permanent disability shall be based on causation,” as Labor Code section 4663 commands, shouldn’t permanent total disability be apportioned as well?)

The WCJ, however, saw it differently:

“we all come to the job market with innate limitations.  It is axiomatic that there will always be certain jobs, given one’s level of intelligence, talents, education, characterological disposition, and innate body strengths and habitus that he or she will never be qualified for.  It would be inequitable to factor these into the equation, in determining whether a worker who has sustained a significant injury is totally disabled.  If we were to do so, no injured worker could ever receive an award of permanent total disability, regardless of how catastrophic his industrial injury might be.”

The Workers’ Compensation Appeals Board affirmed the WCJ’s decision.

Your humble blogger will point out, at this point, that there is a (sadly and regrettably) de-published, and therefore un-citable case, Hertz Corporation v. Workers Compensation Appeals Board (Aguilar), in which the Court of Appeal found, that “[t]he finding of vocational nonfeasibility was based in part on preexisting, nonindustrial factors, that is, Aguilar’s inability to read and write English.  Therefore … Herz is not liable for that portion of Aguilar’s permanent disability that is caused by preexisting nonindustrial factors.”

The WCJ’s opinion in this case is a dangerous one – applicant began working with a very limited scope of possible employment, and he was deprived of only a limited scope of employment by an industrial injury.

To suggest that the employer (or insurer) is liable for depriving applicant of a full spectrum of possible jobs, when applicant’s own decision not to learn English or his non-industrial inability to develop other job skills, had previously barred him from anything other than heavy physical labor, flies in the face of Labor Code section 4663.

In any case, efforts to have Aguilar published were met with disapproval by the California Supreme Court (See 2010 Cal. Lexis 7175 – petition for publication denied).  We can expect that future efforts to recognize as non-industrial such limitations as Messrs. Aguilar and Cordova brought to their employment will likewise be met with stiff resistance by the WCAB.

Tired of Litigating Baseless 132a/Discrimination Claims?

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How many times have you looked at the file on your desk (or your computer screen, for those of this blog’s readers in a paperless environment) and rolled your eyes?  You know the claim before you is baseless; you know it will probably lose; you know the applicant is just shaking you down, hoping it is cheaper to pay him or her off rather than litigate the case.  It makes me even less of a happy camper, the thought of the smiling fraudster applicant and the shady attorney getting away with it (or lien claimant and hearing representative, for that matter).

Wouldn’t you like to do something about it?  Wouldn’t you like to increase the cost of doing business on these guys just a little bit?  Wouldn’t you like to recoup a sliver of that money they made you pay out to defend against a claim with so many holes in it, it was previously used in the spaghetti straining industry?

Sanctions are rarely a remedy, and petty name-calling is generally discouraged in the world of California Workers’ Compensation.  So here is a possible solution – the next time you are facing one of these worthless claims, say those two words that involuntarily appear at the forefront of your mind:

Malicious Prosecution!  (This is a family-friendly blog, after all!)

Without going into the details of the underlying workers’ compensation 132a case (applicant failed to carry his burden and was awarded nothing on the 132a claim), the facts are these:

Employer successfully defeated a 132a claim, then filed a complaint in civil court against the applicant’s attorney and law firm. (Naming names is not done here, at WCDefenseCA, as my dear readers know, but upon request I will e-mail you a copy of the Court of Appeals decision, which includes the names of all parties.  Please send all requests to gregory@grinberglawoffice.com).

The trial court and the Court of Appeals both ruled the case can proceed.  Unfortunately, however, the Court of Appeals opinion is an unpublished one.

Let’s all watch this one closely – if we’re lucky, applicant’s attorneys will be forced to think twice before shaking down employers with baseless claims.

Good Faith Personnel Action Causes Psyche Injury

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Many years ago, I worked in a broom factory (not really, but go with the story).  We would carve our brooms by hand every day – it was a slow and painful process.  One day, the factory owner, Gus, decided to install fancy, shiny new machines that greatly increased the efficiency of the operation.  But the machines were new, and shiny, and scary – a lot of us took the retraining in stride, but one of my co-workers, Jasper, just couldn’t handle the new way things were being done.  And when the economy turned, and the broom factory fell on hard times, the lay offs began.

Jasper kept his job, but he just couldn’t handle the pressure of learning the new machinery and doing the work in a changing environment.  So what did Jasper do?  If your answer is anything other than filing a claim for injury to the psyche (and hypertension), including (1) additional retraining; (2) finding a different job with the broom factory; or (3) quitting and looking for a job with a more traditional broom factory, you probably are not an applicant’s attorney.

Arthur Ecker (The Tribune v. Workers’ Compensation Appeals Board, writ denied), worked for the Tribune as a circulations sales manager.  He claimed to have sustained injury to his psyche and circulatory system over an eleven month period in 2008, proceeding on a theory that the injury resulted from the stress of having to take on new job duties.

Those job duties, of course, were to use computers and Excel spreadsheets.  The Agreed Medical Evaluator and the primary treating physician found that “the requirements of the job were essentially beyond applicant’s capabilities.”

Defendant raised the good faith personnel action defense of Labor Code section 3208.3.  After all, decreases in circulation had lead to a 2/3rd reduction in staff and everyone had to cross-train in responsibilities.  Sadly, the Workers’ Compensation Judge, the WCAB and the Court of Appeal were not convinced by defendant’s arguments.

The WCJ wrote in his Report on Petition for Reconsideration, that he does not doubt the changes in applicant’s duties were not “inappropriate or improper [in] purpose.”  By the WCJ’s reasoning, it was the consequences of the changes that caused applicant’s injury.

By that rationale, when does section 3208.3 apply?  Your less-than-persuaded blogger reckons (as we used to say in the old broom factory) that if applicant’s psyche injury had resulted immediately upon hearing the news of his change in duties, the WCJ would have allowed the defense to stand.

In any case, fair readers, be on your guard against this creeping incursion into the defense of 3208.3.  Perhaps we will see a case with a different result and the force of binding authority soon, correcting this interpretation.

Cal. Chamber of Commerce Hires WC Policy Advocate

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California’s Chamber of Commerce announced that it has hired a new policy advocate for workers’ compensation – Jeremy Merz (a graduate of University of California, Davis and McGeorge School of Law, much like your humble blogger – but please don’t hold that against Mr. Merz, WCDefenseCA has every confidence in his abilities to advocate on behalf of employers suffering from lack of workers’ compensation reform.)

From time to time, this blog has reported on the constant chipping away at the reforms of 2004 and 2005 by applicant’s attorneys, lien claimants, and prescription and surgery-happy physicians (and their lobbying groups).  A series of landmines were side-stepped by Governor Brown in 2011 with the use of his pen for both signing laws and vetoing them.

No doubt the efforts to increase temporary disability to 240 weeks, bring back “rehabilitated” body parts while repealing apportionment under Labor Code section 4663, and countless other assaults on Utilization Review, fee schedules, etc. all await us in 2012.

Lobbying dollars and resources spent on retaining policy advocates are a worthwhile investment for those companies not yet packing the moving trucks and abandoning the Golden State.  Mr. Merz – good luck to you, sir.

When “Presumptively Positive” is No Presumption at All

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Would you have any concerns at all if your driver, pilot, or surgeon had tested “presumptive positive” for amphetamine in his or her blood just after commencing services?  “Ladies and gentlemen, we will be cruising at X thousand feet, although there is a storm in the landing area, I feel surprisingly confident because of the presumptive positive amount of amphetamine in my blood.”  Not a particularly encouraging thought.

Applicant Bart J. Johnson was injured while working for Beyette’s Tree Care (uninsured), rendering him a paraplegic.  While in the emergency room, a blood test came back presumptively positive for the presence of amphetamine.  Defendant asserted the intoxication defense of Labor Code section 3600(a)(4), but to no avail.

The Workers’ Compensation Judge concluded that the single report did not prove that applicant was intoxicated at the time of his injury, let alone that intoxication was a substantial cause in his injury.  The Workers’ Compensation Appeals Board and the Court of Appeals concurred.

If you would like to read the Order Denying Reconsideration or the Report and Recommendation of the WCJ, the Lexis citation is 2011 Cal. Wrk. Comp. P.D. Lexis 378, or please e-mail me for a copy: gregory@grinberglawoffice.com.

How is a defendant to prove its case in a situation such as this.  The amphetamine screen came back presumptively positive.  Although this is not a conclusive test, it should at least shift the burden to applicant to show that he was not under the influence of any illegal substance – after all, “presumptively positive” means more likely than not, also known as a preponderance of the evidence.

Although the defense could have provided a foreman witness to testify as to applicant’s behavior on that fateful day, what would the foreman testify to?  Your typical man-on-the-street, foreman, and (without a doubt) most charismatic and eloquent blogger all have experience with alcohol and its visible effects.  Is every employer and supervisor to be charged with expert knowledge in the effects of amphetamine use and its symptoms?

Even if the defense could have satisfied the intoxication defense requirement of showing intoxication, causation would have been another issue.  Could the defendant effectively prove that the injury was sustained as a result of the intoxication?  According to the WCJ, the answer is “no.”

In any case, your captain would like to use his first drink to toast to the safety of our flight.  Cheers!

MPNs Must Include Chiropractors!

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It is no secret at all that your tireless and consistent blogger is a fan of Medical Provider Networks.  He has screamed his approval from the mountaintop of this blog for all to hear.  But, realistically, the MPN is not a panacea: every armor has weak points.

One such gap in the defense was touched on in the recent case of Garcia v. Zenith Insurance Company (2011) 39 CWCR 293.  There, a Workers’ Compensation Judge had awarded applicant treatment outside of the MPN because the MPN did not include chiropractors.  Citing California Code of Regulations 9767.5, the WCJ let the applicant proceed with a non-MPN chiropractor.

The WCAB denied defendant’s petition for reconsideration.

Are you using an MPN?  Does it have “at least three physicians of each specialty…”?  Are there physicians within “60 minutes or 30 miles” of where your employees live or work?  These are all questions to ask, and regularly — the MPN is not a magic want but a scalpel to be used to great effect but only when wielded with precision and skill.

In any case, the good people at Zenith are no doubt working on their MPN right now, looking for honest chiropractors to add to their lists.

Your humble blogger wishes you a happy new year – enjoy the revelry and stay safe.  I will be at your service, bright and early, on Tuesday, January 3rd, 2012.  See you next year!