Author Archives: Gregory Grinberg

Are §§ 4663 and 4664 Mutually Exclusive?

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Is it possible that the California Legislature, in enacting Labor Code §§ 4663 and 4664, intended for them to be mutually exclusive?  I don’t think so.  In fact, not only did the thought never cross my mind that the two couldn’t be applied in the same case, I never thought the Legislature would limit a defendant’s options to a choice between the two when the two could both easily exist in one case.

Then, I read Robinson v. Workers’ Compensation Appeals Board, a writ denied case.

The skinny:  §§ 4663 and 4664 can both be applied in the same case.

[Just a note – before you begin raining abuse upon your humble author for wasting your time with the obvious, with all due contrition I point out that common sense has consistently proven a weak source of authority in California Workers’ Compensation practice; and even a Writ Denied case from the Court of Appeal places an iron fist within the velvet glove of basic reading comprehension.]

In Robinson, the Workers’ Compensation Judge applied § 4663, apportioning some of applicant’s impairment to non-industrial causation, and also applied § 4664, apportioning some of applicant’s impairment to his prior award from 2004.

Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration, arguing that the legislature did not intend for §§ 4663 and 4664 to be applied to the same case.  The WCAB’s answer?  “[w]e see nothing in the language of the statutes or in their legislative purpose to support such a conclusion.”

The WCAB continued, citing Brodie v. WCAB to hold that impairment must be parceled out into (1) non-industrial causation (§ 4663); (2) prior industrial causation (§ 4664); and (3) current industrial causation.

[Even part (3), current industrial causation, should be parceled out into the various injuries (specific vs. cumulative trauma, multiple specific injuries, or multiple cumulative traumas).  This issue is discussed in a prior post.]

Applicant’s petition for a writ of review was denied by the Court of Appeals.

Workers’ Compensation Daze

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Having Workers’ Compensation Insurance, or self-insuring, is required by the State of California.  An employer typically can’t avoid this requirement, not even a marijuana dispensary.

After law enforcement officers raided NBD Collective in Newark, the owners were slapped with several charges, including conspiracy to possess marijuana for sale, conspiracy to sell marijuana, selling marijuana, and (you guessed it!) failure to obtain workers’ compensation insurance.

In the words of my dear friend Kermit, “it’s not easy bein’ green.”

Perhaps California Workers’ Compensation can be used in the same way that Eliot Ness used tax violations to catch Al Capone – a foot in the door to prevent other criminal activity.

In any case, the NBD Collective had an unfair pricing advantage over honest, law-abiding marijuana peddlers (ha ha) in not getting workers’ compensation insurance.  And in this case, Workers’ Compensation worked to assist in the enforcement of other laws.

So remember, even criminals can get hurt on the job, and when they do, it pays to be insured.

When “Employment” Begins

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A recent writ denied case addressed the details of one of the defenses to psyche claims.  Labor Code § 3208.3 provides that psyche claims can not proceed if the employee has been employed less than (not necessarily continuous) six months.  The exception to this is a sudden and extraordinary event.  An earlier blog post covers this exception.

The skinny:  Employment starts with the first day of actual service – not the technical hire date, preparation dates, or anything else.  If Employee is “hired” and begins work the next week, the next week is the first day of employment for purposes of § 3208.3.

In the case of Hamilton v. WCAB, applicant Jill Hamilton was hired on September 14, 2008 to work as a home mortgage assistant, and began work on September 15, 2008, all after filing an online application for the job on August 6, 2008.  Applicant’s last day of work (and earning wages) was on March 12, 2009, and she was taken off the company books on January 25, 2010.

08/06/08– Applies for the job

09/14/08– Official hire date

09/15/08– First day of work

03/12/09– Last day of actual work/earning wages

01/25/10– Removed from company books

As in all things, timing is everything – had applicant started work just a few days earlier, her psyche claim would have survived § 3208.3.

Knowing this, applicant argued that in early September of 2008, she went, at her own expense, to an office in Ventura to pick up a laptop for her training program.  Although she was not compensated for her time, she claimed that this was her first work-related act, so her “employment” commenced sometime (any time that it might please the court) before September 12, 2008.

The Workers’ Compensation Judge found that applicant began working more than six months before March 12, 2008, and therefore was entitled to proceed on her psyche claim.

The Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration, taking a position contrary to the WCJ’s.  Relying on previous case law, the WCAB found that employment begins with actual work, and does not include time off for disability.  Rather, what counts is the “days of actual service” and not those “days of employment where there was no actual performance of services.”

On appeal, applicant’s Petition for Writ of Review was denied.

Before you follow this next tidbit, bear in mind that this is a crazy idea and using it might incur ridicule, discipline, penalties, or even sanctions!  Of course, if you pull this one off, your name will live forever in endless glory.  When signing autographs, don’t forget to tell the fawning fans where you first got the idea for this maneuver.  That being said, let’s walk down “what if” road.

What if we took the language of this opinion one step further.  Averaging six months to 180 days, can we say that vacations, holidays, and weekends don’t count?  Can we argue that applicant is barred against a psyche claim until he or she has worked an actual 180 days (not counting weekends, holidays, etc.?)

After all, if the job is causing a psyche claim, shouldn’t not being on the job slow the progress of the injury?

It’s unlikely to work, but could provide an interesting chance to test the limits of § 3208.3.

Are extra-PBN liens now valid? Maybe…

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In an earlier post, I mentioned the Valdez v. Warehouse Demo Services (en banc) case, in which the Workers’ Compensation Appeals Board first ruled that defendants are not responsible for treatment bills originating outside of a validly established Medical Provider Network, before deciding to take more time to consider the issue.

While we are in limbo, waiting to see who foots the bill for extra-MPN charges, a thought comes to mind about the companion arena to the MPN: what about the Pharmacy Benefit Networks established pursuant to Labor Code § 4600.2?

In the case of Brambila v. Vons, Inc. (2010), the WCAB denied a lien-claimants petition for reconsideration of the Workers’ Compensation Judge’s ruling that liens asserted by extra-PBN suppliers of drugs are not valid or enforceable.  The WCAB denied reconsideration, relying on § 4600.2.

(As an aside, I have had lien-claimant argue that because the injured worker didn’t understand the PBN network notices, the PBN does not apply to the worker and he or she can obtain drugs wherever he or she wants.  But even if the worker doesn’t understand the plain meaning of the notice, the pharmacist does, and the meaning of the objection letters that followed the first filled prescription as well.)

Since the WCAB now needs more time to consider whether or not insurance companies and self-insured employers are liable for extra-MPN treatment, is it possible that the same reasoning applies to extra-PBN dosages.  The Valdez case is newer and en banc, giving it controlling power over Brambila.

Until the Valdez decision comes out, Brambila is still good law.  If lien-claimants demand payment of extra-PBN liens, settle for token amounts or rush to trial before the WCAB changes its mind in Valdez!

Sanctions for a Bad UR Report? Not in My CA!

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Utilization Review, as previously discussed here and here, is an effective tool in filtering out unnecessary treatment.  However, Labor Code § 4610 has its own requirements to make Utilization Review reports valid, including deadlines and qualifications for reviewing physicians.

If a denial of medical treatment is based on UR, and the UR report does not comply with § 4610, can the denial give rise to sanctions?

Labor Code § 5813 provides that sanctions may be imposed “as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.”

Recently, an applicant took this issue up on appeal, finding no sympathy from the Workers’ Compensation Judge, the Workers’ Compensation Appeals Board or, ultimately, the Court of Appeal (Dominguez v. Workers’ Compensation Appeals Board).

There, the applicant claimed that defendant’s denial of dermatologic treatments based on a UR report was sanctionable conduct because the UR report was not timely and was prepared by an anesthesiologist, rather than a dermatologist or an orthopedist (the underlying industrial injury was an orthopedic one).

The WCJ and the WCAB both found that applicant’s contentions regarding the validity of the UR report were without merit.  But, even if applicant was correct on both counts, the denial does not rise to the level of § 5813 sanctions.  The applicant kept saying sanctions, and the courts responded with…

In other words, go with your gut, and stick to the UR report – at the most, you’ll end up paying the treatment, but no sanctions should be forthcoming.

On Wanting More Than Golden Eggs

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National Workers’ Compensation costs appear to have declined in 2009 by 4.4 percent, according to a report released by the National Academy of Social Insurance.  The report, upon closer inspection, provides a more accurate headline: the decrease in workers’ compensation costs is due not to better laws, fewer injuries, or zealous advocacy.  The decline is due to a drop in covered workers – less jobs, less employees, and less expense for workers’ compensation coverage.

However, as discussed in an earlier post, California still experiences increased expenses for the total costs for the industry.

Whatever the trend elsewhere in the Union, the employers of the Golden State are finding themselves to have laid too many golden eggs, and are now facing the knife.

Jan Norman of the Orange County Register tells us that several companies are leaving California over various costs, among them workers’ compensation.  Arizona, for example, boasted $0.66 dollars in benefits paid for every $100 in covered wages in 2009.  California demanded $1.26 for the same coverage.

In other words, bringing justice and equity back to workers’ compensation continues to be a tough road to hoe – the costs per worker continue to increase.  Furthermore, as more companies vote with their feet and take their votes, their litigation war chests, and their public influence across state borders, those left to hold the line become more spread out.

Unless California, her leaders and officers, come to their senses, before too long there will be no injured workers because there will be no jobs.

I hate to preach doom and gloom, but none of us should expect to take a victory lap any time soon, especially while other states gorge themselves on California Geese.

Crazy for Drycleaning

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I recently started using a dry-cleaner near my office for my shirts.  Before, I used to wash and iron them at home, but the service is ridiculously affordable and convenient.  Little did I know, before reading about the story of Hilda Bonilla, that the work can be very dangerous.

Hilda, a dry cleaner, was injured when an ironing press came down on her hand at work.  The burn mark quickly appeared, followed by a claim for injury to her skin, psyche, nervous system, internal organs, and sleep.

The skinny: for a psyche claim for an employee working the job less than six months, the injury must be caused by an event that is both sudden AND extraordinary – the type of injury that regularly happens at this job, no matter how suddenly, does not qualify.

The Workers’ Compensation Judge found all injuries, the psyche as well, to be compensable.  Defendant petition for reconsideration, arguing that Labor Code § 3208.3(d) barred Hilda’s claim.

§ 3208.3 governs psyche claims, and specifically bars all claims of psychiatric injury for those employees with less than six months (total, not necessarily continuous) time on the job, unless the injury is caused by a sudden and extraordinary event.

Does the ironing press you were using a second ago coming down on your hand count as “a sudden and extraordinary event”?  If it does, is there any specific injury (rather than cumulative trauma) that isn’t a sudden and extraordinary event?

The record reflected ample witness testimony that burns were common, and that employees had to be careful lest they suffer burns from the equipment.

The WCAB granted reconsideration, reasoning that the event may have been horrible and happened suddenly, but the phenomenon of being burned while working at a dry cleaner was not extraordinary, as required by the statute.  By contrast, a gas explosion or workplace violence would qualify as such.

Hilda petitioned for a writ of review.  The result?  WRIT DENIED!  (Bonilla v. Workers’ Compensation Appeals Board (Cameo Cleaners))

Of Broken Hearts and Broken Statutory Interpretation

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A recent Workers’ Compensation Appeals Board opinion, Karges v. Siskiyou County Sheriff, touched on the issue of the law enforcement officer’s presumption regarding heart disease.

The applicant, who worked as a deputy sheriff for over seven years, was diagnosed with atrial fibrillation following a life insurance examination.

Labor Code § 3212.5 allows for law enforcement officers’ heart trouble or pneumonia to be regarded as an industrial injury.  The section provides a presumption of industrial causation, so long as the employee worked for more than five years before the presumption arises.

At trial, the Workers’ Compensation Judge found no injury to the circulatory system, but instead found an injury to the heart.  Defendant petitioned for reconsideration of this finding, arguing the heart disease was congenital.

The WCJ in this case found the issue to turn on the definition of the word “disease,” as found in § 3212.5 (“[s]uch heart trouble … shall in no case be attributed to any disease existing prior to … manifestation.”  Ultimately, the WCJ reasoned that the Labor Code intended to cover, as a “disease,” those conditions with which the applicant was born.

Naturally, your humble author disagrees with this reasoning – Labor Code § 4663 clearly states that “[a]pportionment of permanent disability shall be based on causation.”  In this case, it would appear that the two code sections, to some extent, conflict.  The natural course of action is to interpret them in such a way as to NOT conflict.  This would necessitate interpreting “disease” as to not including any congenital conditions.

Furthermore, Labor Code § 3212.5 was last amended in 1976, whereas Labor Code § 4663 was last amended in 2006.  If, as the WCJ states, the judges are required to apply the “usual rules of statutory interpretation,” then the more recent action of the legislature is the best expression of legislative intent.  Therefore, § 4663, in the event of any conflict, should supersede § 3212.5.

It does not appear that this case is to be appealed, but hopefully the next time this issue comes up the answer will be more favorable to the defense community.

Sipping COLA

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Employers rejoice!  The California Supreme Court has properly interpreted the California Labor Code (§ 4659) to hold that cost of living adjustments are to begin on January 1st following the year in which an applicant becomes permanent and stationary in cases of permanent total disability, or when permanent disability benefits end and life pension payments begin.  (See  Baker v. Workers’ Compensation Appeals Board.)

The Skinny:  COLA is calculated and adjustments are to be made:

* At the time the applicant is P&S (when there is an award of 100% permanent disability);

* At the time the PD indemnity is exhausted and the life pension begins (if there is to be a life pension.)

Labor Code § 4659 is fairly clear: injuries after January 1, 2003 resulting in total permanent disability or a life pension will have the benefits increased based on the state average weekly wage (essentially to cover the cost of inflation).

Applicants’ attorneys have argued that COLA increases begin January 1, 2003, even for injuries occurring as late as 2011.  California Workers’ Compensation is racked with disappointments about the interpretation of the law, but this is not one of them.  The Supreme Court got this one completely right – COLA increases are determined by the PTD P&S date (or the start of the life pension), and not in 2003.

In rendering this decision, the Supreme Court overturned the California Court of Appeals, and put an end to years of waiting for the determination of this issue.

This morning, adjusters and defense attorneys around the state are walking with their heads held high, bearing a faint smile on their lips as many WCJs and applicants attorneys glare on and simmer in their defeat.

Proper Grounds for Changing Venue

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In California Workers’ Compensation, what constitutes good cause to grant applicant’s change of venue motion?  This is a question that was touched upon in the recent panel decision French v. Warner Brothers (2011) 13 WCAB Rptr. 13,216.  However, the answer one can walk away with is not what is, but rather what is not, good cause.

The skinny:  The convenience of applicant’s attorney is not sufficient good cause to change the venue of a case.

Here are the essential facts:  Applicant filed an application for adjudication of claim, and later an amended application, and in both cases consented to venue at Marina del Rey.  Applicant then switched his attorney to one with an office in Long Beach, and moved to South Carolina.  His attorney filed a motion to change the venue to Long Beach.

Defendant objected, asserting that the place of injury and the place of business for its witnesses were both in Burbank.  As you can imagine, the Workers’ Compensation Judge granted applicant’s motion.  (Somehow, the convenience of defendant’s witnesses, or even defendant’s own attorneys, did not seem to matter to the WCJ).

After the matter was set for a Mandatory Settlement Conference, defendant filed a petition for reconsideration, arguing that no order changing venue had ever been received and that there are no valid grounds to change the venue.

As a side-note, because defendant’s grievance was an interim order, the order changing venue, the proper course of action was a petition for a removal, not a petition for reconsideration.

The Workers’ Compensation Appeals Board, denied the petition for reconsideration, granted the petition for removal, and rescinded the order changing venue.

In other words, the convenience of a new applicant’s attorney is not proper grounds for changing venue.

The WCAB also noted that the WCJ did not make any findings as to the good cause for the change of venue, and that the WCJ erroneously placed the burden of showing good cause not to change the venue on defendant.