Happy Monday dear readers!

It’s been a dizzyingly busy time to be in workers’ compensation, and your humble blogger will endeavor to bring you a little slice of the goings on.

The first thing that comes to mind, of course, is the Court of Appeals published decision, issued on June 1, 2021, in the matter of Applied Materials v WCAB.  The applicant’s name is not disclosed because the case itself involves allegations of sexual abuse.  The Applied Materials case focuses to two primary questions: (1) is sexual abuse and exploitation of an industrially injured worker by that worker’s treating physician compensable? And, (2) what about Fitzpatrick?

The first question the Court of Appealed answered in the affirmative, fairly readily actually.  Sexual exploitation and abuse by a treating physician can give rise to a compensable consequence injury, and in this case did just that.  The Court rejected the argument that the sexual contact was consensual.

The main focus of this relatively humble blog post is, of course, the fact that the Applied Materials Court also endorsed Fitzpatrick.

So, some background on the law regarding Fitzpatrick.  In 2014, the California Legislature amended Labor Code section 4662, which governs permanent disabilities presumed to be total in character.  The amended Labor Code section separated permanent total disability “determined in accordance with the fact” into its own subsection, which presumably disconnected it from subsection (a), which read: “any of the following permanent disabilities shall be conclusively presumed to be total in character”.

The effect? The results in the case of Fitzpatrick, wherein the Court of Appeal ruled that to get to 100% permanent disability, one either had to have the permanent impairment listed in section 4662(a)(1)-(4) (loss of both eyes, loss of both hands, total paralysis, brain injury resulting in incapacity or insanity) or have PD actually reached to 100% through a rating.

Presumably, this did not affect Ogilvie vocational rehabilitation theories, but it eliminated an evaluator’s ability to conclude that a permanent disability was total, without stacking up the actual ratings.

Now let’s go back to Applied Materials – the psychiatric physician on this case opined applicant was permanently totally disabled due to the PTSD caused by her sexual exploitation and abuse at the hands of her pain management treating physician.  However, the GAF score offered by his reports was 45, which translated to 40% WPI and around 70% PD.  So how to we get to 100%? 

We don’t.  The Applied Materials Court cited (and therefore endorsed) the approach outlined in Fitzpatrick, which held that if the injured worker’s condition does not fall into one of the four categories outlined by Labor Code Section 4662(a), then 100% cannot be reached by a medical-legal report absent the appropriate ratings.

Now, mind you, dear readers, under Kite, it’s conceivable that a 50% PD psyche rating and a 50% PD orthopedic rating might stack towards 100% PD, but those are certainly not the facts here.   As the Applied Materials opinion points out, a GAF score of 29 or less in this case would have resulted in 100% PD as well.

The Court of Appeal sent the case down for further proceedings, but between the Supreme Court declining to review Fitzpatrick and the Applied Materials decision, we are getting a pretty good indication of what the binding authority is on this issue. 

Straight on till Wednesday, dear readers!

Well, dear readers, this is one of those rare posts when I’m hoping you’re it on a Tuesday rather than a Monday. But, if you’re checking your work e-mails today, I salute your diligence and work-ethic!

Today, as you know, is Memorial Day, which is a day of remembrance for the servicemen and women who lost their lives in the service of the armed forces.

If your mind is turning to how this day will affect your case, please recall that in California, Memorial Day is a state holiday and a legal holiday, which means that any deadline that falls on today is extended to the next business day (Tuesday, June 1, 2021).

If your mind, instead, is turning on what can be done to celebrate this day, other than meaningful reflection, consider making a donation to Gold Star Families.

As for your humble blogger, I will be here, ready to blog (humbly of course), as always.

Happy Memorial Day!

Ok, dear readers, you still with me? It’s Friday after all! 

Remember that Kuciemba case your humble blogger reported on a bit previously?  Well, it didn’t work out so well for the plaintiffs.

Mr. and Mrs. Kuciemba both sued Mr. Kuciemba’s private employer on a theory that Mr. Kuciemba was exposed to COVID19 in the course of his employment duties and then brought it home to his wife.  Both were hospitalized after testing positive for COVID19.

Previously, the trial judge in the Kuciemba matter dismissed the claim with leave to amend, reasoning that it should be confined to the worker’s compensation system as to Mr. Kuciemba’s claims, declining to apply the reasoning used for asbestos litigation to COVID19. 

Well, even after amending the claim, the trial judge found insufficient basis to proceed and dismissed the claim.  So, at least for now, employers can breathe a bit easier about the fallout of COVID19 exposure to their employees, to wit, employees’ family members claiming downstream exposure and suing for negligence.

That being said, it was the California Supreme Court that opened up asbestos litigation for family members of employees.  We should all agree to keep watch over this for developments up the chain of appeals.

Have a good weekend, dear readers!

Happy Monday, dear readers!

If you were in the vicinity of your humble blogger at the moment, you might conclude that he was particularly cheerful.  And why would that be?  Well, I can certainly tell you.

It is a rare enough event to have the statute of limitations bar a claim.  To start off, it is generally a “disfavored” defense because of the preference to have disputes resolved on the merits.  Further, the burden of proof is on the defendant to show that the statute of limitations would bar a claim, given that the statute of limitations is an affirmative defense.  Finally, as the Supreme Court held in Reynolds, when the employer knows of an industrial injury, it may be estopped from raising the statute of limitations defense if it fails to provide a claim form and notice of the right to workers’ compensation benefits.

In other words, it is no coincidence that the Statute of Limitations defense is often shortened to SoL.

So, imagine how pleased your humble blogger was to see the case of Matani v. IHSS, a recent panel decision, where not only the WCJ found that applicant’s claim was barred by the statute of limitations, but the WCAB panel agreed on reconsideration.

Applicant Matani worked for IHSS, although this was solely in the capacity of taking care of his father, which included, among other duties, driving his father to and from his medical appointments.  In September of 2014, applicant was involved in an MVA while engaged in such work, but did not file a workers’ compensation claim.  Instead, he waited until October of 2017 to file an application.

Labor Code 5405(a) provides that an application must be filed no later than one year from the date of injury, and applicant waited more than three to file an application.  Defendant denied the claim, arguing that it had no notice that there was an industrial injury. 

So, if the MVA happened in 2014 and an application wasn’t filed until 2017, that would seem to suggest the claim is barred by the statute of limitations, no? 

Well, applicant offered his own theory on why the statute of limitations should be tolled.  First, he claimed that he sent a facsimile to his supervisor advising that he had “met with accident.”  He could not remember if he mentioned transporting his father at the time, and records subpoenaed from defendant did not include any such facsimile.  Defendant put on witnesses to testify that the clerical staff is trained to review facsimiles for industrial claims and report them immediately, and that no such report was made in this case.

Further, applicant claimed he had a phone conversation in October of 2014 with his case workers, in which he advised them of the MVA involving him and his father.  However, defense witnesses disputed this as part of the conversation and testified that no MVA was mentioned during the phone call. 

The WCAB affirmed the trial judge’s order that applicant take nothing by way of his claim.  The panel reasoned that applicant had actual knowledge that his injury was industrial in nature since he was transporting his father to a medical appointment and was being compensated for his time by IHSS. 

Further, to trigger the tolling of the statute of limitations, applicant would have had to show actual or constructive notice of an industrial injury – the “should have known” standard does not apply to triggering the duty to provide a claim form.

By showing that no application was filed within a year of the date of injury, defendant successfully raised the statute of limitations defense.  By applicant failing to show that defendant had “actual or constructive” notice of an industrial injury being claimed within one year of it occurring, the defense was allowed to stand.

So, some takeaways from the Matani case?  Although defendant bears the initial burden with respect to the affirmative defense of statute of limitations, once this is show, the Matani panel would shift the burden to applicant to prove actual or constructive knowledge.  Further, defendant was able to effectively negate any such effort to toll the statute of limitations by offering witness of its own regarding the habit and regular procedures used by defendant to identify and respond to alleged industrial injuries.

So, over all, not a bad result for the defense community.  Straight on till Wednesday, dear readers!

Happy Wednesday, dear readers!

If you’re ever curious about whether you are, at heart, an optimist or a pessimist, try running a business in California.  If you find yourself saying “well, it couldn’t possibly get any worse”, then odds are that you’re an optimist. 

California businesses have repeatedly thought they got to the point where they were through the worst.  Each time, they were wrong.  COVID19 has been brutal to many of California’s businesses and several have closed their doors for good.  Those that still have their lights on are tracking the average number of employees in each location to determine COVID19 presumption; supervising reduced capacity; and often enough struggling to pay expenses and employees while trying to lure clients and customers out of hiding and to the cash register.  You’d think Sacramento would be looking for a way to make things easier for them.

Well, there’s more. 

On April 16, 2021, Governor Newsom signed into law SB-93.  Basically, if an employee working in any of the listed industries was laid off due to “the COVID-19 pandemic, including a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason due to the COVID-19 pandemic,” the employer must offer an open position to such an employee before hiring someone new.

Within 5 business days of establishing a position, the employer must mail or hand deliver as well as e-mail and text (if possible) notice of the available positions to the laid-off employee.  The employee then has five business days to accept or decline the position. 

The law imposes record-keeping requirements on employers for 3 years and requires an employer to provide written notice to any “laid off” employee that was “passed over” for a position.  All of these requirements still apply even if there is a change of ownership, which means that a new business entity would be inheriting the obligation to “laid off” employees.

There are enforcement penalties too, to be adjudicated by the Division of Labor Standards Enforcement, with remedies including hiring/reinstatement, lost pay, and benefits.  There are also statutory penalties imposed.

Some employers seeking to terminate employment for disciplinary reasons will often offer to couch the termination as a “lay off” for the benefit of the employee.  Well, that’s not feasible now – the employee will have to be terminated for cause to avoid exposure for reinstatement. 

How will this legislation impact the approach to a Compromise and Release?  Will a voluntary resignation letter negate the impact of SB-93?  Presumably, the C&R would need to include language to the effect that the applicant is not a “laid-off employee as contemplated by Labor Code section 2810.8” although how the Division of Labor Standards Enforcement will treat such a stipulation will have to be seen.

Employers should be particularly careful about documenting the reasons for separation and coordinate with their adjusters to ensure all proper documentation is available when drafting settlement paperwork.

The silver lining might well be that as applicants push to apply the effects of SB-93, they may very well be negating any potential claims to rebutting the PDRS based on vocational rehabilitation evidence, as general economic conditions should be an argument against rebutting the PDRS.  That is an issue for another post, however.

Straight on till Friday, dear readers!