Author Archives: Gregory Grinberg

Smashing Through the Eggshell Applicant Theory

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Have you ever heard of the eggshell plaintiff (or applicant)?  Picture an employee made entirely of egg shells.  When a clumsy customer stumbles into the shop, he bumps into an ordinary employee without any noticeable damage, but when he bumps into Mr. Eggshell with the exact same amount of force… well… all the employer’s doctors and all the employer’s lawyers couldn’t put Mr. Eggshell back together again.

In other words, the defendant must take the injured worker as he finds him – with no discount for the gap between a typical employee and this super-sensitive one.

But what about apportionment?  If there is a non-industrial contribution to applicant’s impairment, shouldn’t that discount invalidate this “eggshell applicant” doctrine?  Of course it does – but only as to permanent disability.  Unfortunately, we can not apportion medical treatment, and 1% industrial causation imposes 100% liability for medical costs.

The reason, dear readers, that I serve you this omelet, for which eggs were most certainly broken, is because of a recent case – Karen Reff v. Workers’ Compensation Appeals Board (writ denied).  Therein, applicant-nurse contracted occupational pneumonia which aggravated her pre-existing common variable immune deficiency, a genetic disease.

Applicant claimed that the industrially contracted pneumonia interacted with her pre-existing (and previously dormant) common variable immune deficiency, necessitating lifetime medical treatment, to wit, immunoglobulin deficiency replacement treatments.

The Workers’ Compensation Judge applied the eggshell plaintiff doctrine to hold defendant responsible for applicant’s future medical treatment.  Defendant naturally petitioned for reconsideration.

The Workers’ Compensation Appeals Board granted defendant’s petition, reasoning that, based on the relevant medical information, applicant’s hospitalization would have eventually happened when something (any number of things) would have triggered here CVID.  Furthermore, it appears that the more likely reason doctors were continuing the immunoglobulin therapy was to treat the CVID and not the industrial injury.

To summarize, applicant claimed her non-industrial injury was made worse by the industrial one, and demanded defendant pay for her non-industrial treatment.  The WCJ agreed.  But the WCAB put the question to a different standard.

According to the WCAB, the proper inquiry is whether “the medical evidence indicates that within reasonable medical probability the normal progression of the non-industrial disease or condition would have resulted in disability regardless of the industrial injury.”

[In interpreting this standard, your humble author can’t help but muse whether mortality is a “non-industrial disease or condition” such that a death claim could be defeated by showing the result that would have occurred “regardless of the industrial injury.”  Of course, I don’t advise trying this argument.]

In other words, because many things will trigger the same effect in applicant’s non-industrial, pre-existing condition, the award of lifetime medical treatment is not justifiable.

The Court of Appeal denied applicant’s writ of review.

Do Not Pass Go, Do Not Collect $200

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A recent article from BusinessInsurance.com covers an interesting case.

Normally I don’t post on unpublished opinions because, according to the California Rules of Court, unpublished opinions may not be cited.

The facts of this case are pretty straight forward: plaintiff worked for a construction company that was put to work on the company-boss’s house.  Applicant slipped and fell while at the house and wanted to sue his boss in civil court.  The Court of Appeal sent this one back to the workers’ compensation world.

I am well aware, as I’m sure many of my readers are, that defendants are regularly robbed in California’s Workers’ Compensation system.  Perhaps, if given the option, the defense community would be better off regaining its due process rights and duke these cases out in the civil arena.

That being said, I’m always surprised to see injured workers trying to climb out of the same lobster tank as us defendants.  After all, the workers’ compensation world is a workers’ paradise – why risk the dangers of the civil arena with its burdens of proof, concrete rules of evidence, and systemic accountability when you can have the presumption of compensation and applicant friendly environment of workers’ comp?

When both sides of the table are trying to jump ship – something is definitely wrong, both on the horizon and at the helm.

The Bite of the “Going and Coming” Rule

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If an employee “lives” far away from where he “works” is he ever off duty?  The answer, according to the Workers’ Compensation Appeals Board and the Court of Appeal, is yes!

In the case of Dann Peter Shubin v. Workers’ Compensation Appeals Board, applicant worked as a pilot for Southwest Airlines, and was based in Oakland, even though he and his wife “lived” in Pasadena.  Applicant would arrange his schedule to have weekends off and would stay with friends or in his van between flights.

Under Southwest Airlines’ scheduling scheme, after a flight, reserve pilots like Mr. Shubin would receive a 9-hour “rest” period during which they could not be recalled for more work.  Applicant had just started one of these rest periods and decided to visit friends in Winters, a town roughly an hour away.

En route, applicant was in a car collision, and subsequently filed a claim for workers’ compensation benefits.  The Workers’ Compensation Judge found the injury AOE/COE (arising out of employment and within the course of employment), and defendant filed a petition for reconsideration.

Because the WCJ did not submit a report on recommendation, we will never know his reasoning.  Never the less, the WCAB studied the issue and granted reconsideration, recognizing that the coming and going rule applied to this case.  [If the going and coming rule does not apply to an employee who, by company-wide policy, can not under any circumstances be assigned any tasks for the next 9 hours, I don’t know where it would apply.]

The “going and coming” rule is one of those rare instances where common sense and reasonability poke their way through the shroud of California’s Workers’ Compensation system.  Essentially, the rule provides that injuries sustained going to or coming from work are not covered by workers’ compensation.

There are exceptions to this rule, of course.  These exceptions include “special missions” and “commercial travelers,” the details of which are the subject of a future post.  Because applicant was officially and actually off-duty for the next 9 hours, the going and coming rule applied and applicant’s claim was barred.

Applicant was a free man living in a nation of laws – he chose to “live” in Pasadena, he chose to “work” in Oakland, and he chose to visit Winters on the night of his unfortunate car accident.  The only alternative outcome for this case would have been to hold that if an employee works outside the four walls of his home, he is always on duty by virtue of being on the other side of his front door.

Dear readers, by no means am I the type of man to tell others how to run their businesses.  But it is worthy to note that in this case, Southwest was saved by having a company-wide policy of duty/off-duty pilots and sticking to that policy.  No doubt if applicant could have offered evidence that pilots were occasionally called back to duty during their “rest” period, in violation of this rule, the case would have turned out quiet differently.

Michigan Timidly Tries to Curb California

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Early on in my blogging career, I wrote about Florida’s efforts to curb California’s pillaging of orange groves and Dolphin teams with our very own section 5500.5.

I even had the distinct privilege of summarizing the workers’ compensation issues on Lockout Lowdown, an excellent sports law blog.

It appears that several states may follow Florida’s lead, among them Michigan, although clearly not as boldly and with a fraction of the effect.  A recent article reports that unsurprising support of the Detroit Lions for HB 5002, the Michigan workers’ compensation reform bill.

The bill locks visiting players out of Michigan’s workers’ compensation system if their state makes reciprocal arrangements for Michigan’s players.

In other words, the legislature in Michigan is telling the legislatures of other states: pass similar laws or we’ll loot your professional sports teams.

Here’s the problem with Michigan’s scheme: California doesn’t appear to care very much about its businesses, sports teams included, so the 49ers, the Giants, etc. are more of the human shield variety for Michigan and the like.  Also, no other state has as crippling generous workers’ compensation benefits as California, so more pillaging will be done from this state than from any other.

In any case, I salute Michigan for heading in the right direction – I don’t want non-Californians clogging up my venues with non-California cases because of a single game played in the Golden State.

As we watch the events unfold before us, dear readers, remember to keep calm and carry on.

On Starting Temporary Disability Five Years After Injury

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The Court of Appeal recently denied an applicant’s petition for a writ of review in a case primarily dealing with the Workers’ Compensation Appeals Board’s 5-year jurisdictional limit.

Essentially, applicant filed a petition to reopen for new and further disability a few months shy (54 days) of five years past his date of injury.  The Agreed Medical Evaluator found that applicant had remained permanent and stationary.

Applicant then underwent (industrial) back surgery in November of 2009, and defendant provided temporary disability benefits for roughly four months, before stopping on the grounds that applicant was not temporarily disabled at the time the petition was filed.

The issue proceeded to trial and the Workers’ Compensation Judge found that applicant was entitled to temporary disability benefits from the date of his surgery through the date of the trial (and ongoing).

Following defendant’s petition for reconsideration, the Workers’ Compensation Appeals Board found that there is no authority to award temporary disability for a period beginning after the five-year period has expired, even if a petition to reopen was timely filed.

In other words, if applicant does not begin a period of temporary disability within five years of his or her injury, no more TD will ever be award.  Not a groundbreaking finding, of course, but a useful tidbit of knowledge to keep in mind when facing those pesky petitions to reopen.

The writ denied case?  Gregory McBee v. Workers’ Compensation Appeals Board.

The WCAB Wants Your Input!

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Previously, your humble blogger had reported the decision of Messele v. Pitco Foods, where the Workers’ Compensation Appeals Board, in an en banc opinion, attempted to provide some clarity as to the proper timeline for using the panel qualified medical evaluator system.

You read the opinion.  You understood the opinion.  You were prepared to move on with your life.  Now there’s more.

The WCAB has issued another en banc opinion, in this one stating that “it was not [their] intention to throw into uncertainty the validity of QME panels previously obtained in ongoing workers’ compensation proceedings.”

While the decision currently stands, the WCAB has proposed making it apply prospectively only.  In other words, if the panel was issued outside of the proper timeline, and a party did not object before September 26, 2011, the panel stands.

In case you’re wondering, the WCAB would like to know what you think – you can submit written comments so long as they are received no later than November 19, 2011 by sending them to the Workers’ Compensation Appeals Board, Office of the Commissioners, at either its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102) or its Post Office Box address (P. O. Box 429459, San Francisco, California 94142-9459).

Shall all the past be revisited and re-litigated?  Or shall well simply continue down the yellow brick road as if the Medical Unit has done no wrong?  We can hopefully expect some finality on this issue in a month or two.

In the meantime, I suggest getting cozy and familiar with the procedures outlined by the WCAB – the rules allow the players who know them to control the PQME specialty and, very likely, the outcome of the case.

When your faithful blogger knows more, so will you.

Yet Another Income Source and Still Temporarily Disabled…

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A recent writ denied case discussed (and erroneously concluded) that delayed and un-guaranteed income from past employment does not affect temporary disability benefits.

In the case of Ralphs Grocery Company v. Workers’ Compensation Appeals Board (Matthew Boyd), applicant alleged a cumulative trauma injury which was denied by the defendant.  One of the issues in the case was that of temporary disability.

As it happens, applicant was, at one time, in the real estate industry.  After real estate values plunged into a nose dive and took many of its participants with it, applicant went back to work for Ralph’s as a store manager.

After leaving the industry, applicant still referred potential clients to his former colleagues/competitors and, after the alleged injury resulted in a surgery, applicant’s former colleagues/competitors finally paid “finder’s fees” in the amount of $32,000.00.

The question is – does this income in any way offset the temporary disability benefits defendant would otherwise be required to pay?  The answer, at least in this case, is no.

Defendant’s claim for credit for TD up to $32,000.00 was rejected for many reasons, and sadly I can’t find too much fault with the Workers’ Compensation Judge or the Workers’ Compensation Appeals Board.

It appears the issue of credit for TD was not raised at the Mandatory Settlement Conference or at Trial, nor did the defendant seek to establish some sort of record as to when the money was “worked for.”

If your humble author were told, during a deposition or otherwise, that an applicant had found a quarter while on TD, follow-up questions would have issued post-haste as to where, when, and why, if the applicant is healthy enough to go around finding quarters, he couldn’t be back to work and off TD.

That being said, should it matter?  If applicant can make referrals from a surgery recovery room, should it matter that he may have physically made the referral before?  Furthermore, since the world of California Workers’ Compensation is so fond of presumptions and burden shifting, shouldn’t proof that money was earned, or at least collected, during a period of TD shift the burden to the applicant to prove when and how he earned it?  After all, the burden is infinitely lighter on an employee to prove when he was paid and for what than for a defendant to prove the same.

In any case, no profit comes from wringing my poor-lawyer’s hands about such situations.  But there is profit in all of us seeing such a thing coming.

Correctional Officer Heart Presumption Rebutted? You-betcha!

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Labor Code section 3212.2 creates a presumption of industrial causation for corrections officers who, sustaining an injury to the heart (or “heart trouble”), have the injuries develop or manifest themselves during employment, or, in some cases, up to 5 years later.

But, practically speaking, is this presumption ever rebutted?  Is it possible an evaluating physician will conclude the heart trouble developed or manifested itself before applicant began working for the Department of Corrections?  After all, we’ve seen an industrial award to a sheriff’s deputy under section 3212.5 for a congenital heart defect.

The answer, apparently, is yes.  I respectfully direct your attention to the writ denied case of Michael Yubeta v. Workers’ Compensation Appeals Board. [Forgive your humble author his “you-betcha” puns.  Just give a polite smile and keep reading.]

Applicant corrections officer (the penal kind, not grammar), filed a claim for heart disease after thirteen years of employment by the Department of Corrections and Rehabilitation.  The parties agreed to a medical evaluator who, after evaluating applicant, diagnosed him with cardiovascular disease and coronary heart disease.

However, following a thorough review of the records (possibly guided by a well drafted letter), the AME found the cardiovascular disease to have manifested itself before applicant began working for the DOC.

Therefore, reasoned the AME, the public safety officer presumption of section 3212.2 does not apply, and 85% of the impairment should be apportioned to non-industrial causes.  The other impairments, including the psyche claim, went as these things normally do.

Did applicant petition for reconsideration?  Yubet[ch]a!

In his report and recommendation that applicant’s petition be denied, the Workers’ Compensation Judge argued that the designation of an agreed medical evaluator reflects a recognition from the parties of the evaluator’s competence and impartiality.

Given this, the WCJ’s report continued, “[t]he question of when a disease process develops and manifests itself was a question of medical fact within the expertise of” the AME.  As the AME found, the hypertension “develope[d] and manifest[ed] itself” before applicant became a correctional officer employed by the State.

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration, adopting and incorporating the WCJ’s report.  The Court of Appeal denied applicant’s writ of review.

Medical Unit Inches Towards Propriety

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Bowing to the voluminous complains of countless workers’ compensation attorneys, as well as the en banc decision of the Workers’ Compensation Appeals Board in Messele v. Pitco Foods, Inc., the Department of Workers’ Compensation has set out new procedures for panel requests.

Before we play the Ewok celebration dance again, let’s recognize that this is a very limited fix in a very broken system.  The Medical Unit is not about to start following its own regulations or disowning its old unsigned, unofficial memorandum.  In accordance with the Messele opinion, the Medical Unit will only start rejecting pre-mature panel requests.

At least, that is the understanding from the latest DWC Newsline.

From what I can tell, the Medical Unit will continue to:

* Issue panels in a specialty other than that of the primary treating physician (chiropractors and pain specialists for everybody!)

* Issue a second panel to an applicant because he or she now represented (more chiropractors and pain specialists for everybody!)

*[Conceivably] Issue two panels in one case because of two requests (one from the defense, one from the applicant).

In other words, we will have to continue to be vigilant and aggressive, even if that means filing our DoRs in response to the Medical Unit’s errors.

In terms of the new procedures, the Medical Unit will reject premature panel requests.  [Please see my post on Messele, above, for a discussion of proper timing.]  The DWC also suggests including a proof of service with your letter proposing Agreed Medical Evaluators and mentioning, in the proposal letter, the subject of the dispute (for the Medical Unit’s future reference).