There I sat, dear readers, with my brother-in-law Jasper looking at the blue-print of the wheel-barrel factory parking lot he was considering buying, and imagining all the obstacles he could place between the street and the factory employee entrance with which to test his employees.

So, as I side-stepped the issue of intentionally exposing workers to snake-pits, quick-sand, and land-mines, I gently pointed out that he might still be liable for injuries sustained in his parking lot because of the “special risk” doctrine, which makes injuries sustained during travel to work compensable if the employee is exposed to a risk of injury, for the benefit of the employer, to which the general public is not exposed.

For example, the applicant in the case of Sandra Parks v. Workers’ Compensation Appeals Board, was attacked two car-lengths down the street from the employer-provided parking lot, as she was boxed in by school children crossing the street and other cars behind her.  In finding the injury compensable, the Court of Appeal reasoned that the car’s immobility caused by school children crossing the street was a special risk, and thus compensable.

Similar results were reached in R. G. Greydanus v. Industrial Accident Commission and John Freire v. Matson Navigation Company.  In Greydanus, a dairy employee who had to turn left across a busy road to pull into the dairy farm was found to be exposed to a special risk because of the dangerous turn.

Likewise, in Freire, a janitor who worked aboard a steamship could only reach the ship by walking across a public bulkhead.  The walk across the bulkhead was found to be a special risk, and the injury, though sustained some distance away from the ship itself, was found compensable.

Jasper looked deeply saddened as his eyes became watery and he glanced down at his blue-print.  Where, before, the set of American-Gladiator was re-born in his parking lot, now remained only painted lines between which employees could park their cars before proceeding to work.

Frustrated, Jasper shoved his blue-print aside and decided he wouldn’t have a parking lot at all.  As he angrily stared out the window, no-doubt jealously glaring at the restaurant’s parking lot, your humble blogger felt compelled to give some good news.

What could I tell Jasper to cheer him up?

Employees sometimes drive to work,
And then they find a parking spot,
Sometimes on a busy street,
Sometimes in a parking lot,
But injuries can still occur,
Between their cars and the front door,
And who will pay for slips and falls,
Will always be the Judge’s call.

Such is the nursery rhyme sung to children of applicants’ attorneys and defense lawyers in the dark and murky world of California workers’ compensation.

This issue came up recently while I was having lunch with my brother-in-law, Jasper.  Jasper had been doing well recently in the wheel-barrel industry, and wanted to expand his operations from his garage to a real factory.  He invited me to lunch to present me with some exciting investment opportunities in the wheel-barrel industry.  Currently, Jasper had his eye set on one location in particular because it came with a parking lot.

His plan was to set up a series of obstacles in the parking lot, in the hopes that the employee with poor agility and balance would sustain injury outside his factory and shield him from workers’ compensation liability.  Thus, only the workers that could swim faster than sharks, swing over quick-sand pits, and tight-rope over mine-fields would actually make it to work.

Without getting into issues of Serious and Willful Misconduct, for those readers out there that aren’t Jasper, when you’re facing a claim of injury in or near a parking lot, are you on the hook?  Let’s start with the basics.

In order for an injury to fall within the scope of California’s workers’ compensation system, as opposed to general civil tort, the injury must arise out of and occur within the course of employment.  (See Labor Code section 3600.)  This is commonly referred to as AOE/COE.  Generally speaking, injuries sustained during the regular commute to or from work are not compensable, unless they fit into one of several exceptions.

But what about that last stretch of travel, between the car door and the building door?

In the case of Lewis v. WCAB, Lewis parked in a lot leased for employees.  Walking down the street to her office, three block away, she fell.  In finding the claim compensable, the Supreme Court reasoned that there is a “reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done” included within the scope of employment.

The Court went further, noting that once the employee enters the premises under the control of the employer, including employer-owned parking lots, the commute has ended and the scope of employment has begun.  (See Santa Rosa Junior College v. WCAB, footnote 11.)

By providing an employee parking lot, Jasper could very well find himself increasing his liability with every square foot of parking under his control.

At this, Jasper got nervous and decided his plan would have to be changed.  Instead, he would have his employees park on the street and use the entire lot for more obstacles.  After all, he read an article in Wheel Barrels and Workers’ Comp., a very limited-circulation magazine which only exists in this story, which discussed a similar idea.  There, the article’s author discussed two cases.

The first, an unpublished decision by the Court of Appeal, was Sharp Coronado Hospital v. WCAB.  There, the Court held that an employee asked by its employer to park on the street instead of the parking lot was precluded from recovering for an injury sustained while walking from the employee’s parked car to the hospital.  The other, General Insurance Co. v. WCAB, held that an employee struck while crossing the street from his parked car to work could not recover because of the going and coming rule.

Furthermore, he had heard his friend, an applicants’ attorney, grumbling about the panel decision in the case of Sharon Ewegemi v. Oakland Unified School District.  In that case, he understood, a teacher had parked her car on the street and was just a few feet from the door of her school when she turned back to get some papers from her car.  Walking to her car, she tripped and fell in the street.

In denying her application, the Workers’ Compensation Appeals Board reasoned that, until she entered the school and began working, she was still engaged in her commute, even up to a few feet away from the school.

Jasper’s new plan could put all this into use, he though, by having his employees cross the obstacle course before entering the front door.

Now, bear in mind, dear readers, this is my brother-in-law, so things had to be stated delicately, or else every Thanksgiving Dinner would include Jasper mumbling about how he hopes I come see his snake-pit.  So, I had to explain that his new idea wouldn’t exactly work, either.

Why wouldn’t Jasper’s idea work?  Come back Wednesday to find out!

So, there I was, sitting in my Uncle Olaf’s kitchen as his possibly-independent-contractor scrubbed his prize-winning giant Clams, getting them ready for sale.  Uncle Olaf was beginning to get worried – what if his upstart nephew was right and, even though Uncle Olaf didn’t get insurance for the Clam Cleaner, an employment relationship was formed.  After all, if Mr. Clam Cleaner was an employee, Uncle Olaf would be liable for any injuries sustained by Mr. Clam Cleaner, and, having lost both hands to giant Clam Bites before, was very much aware of the risks involved.

“I’m pretty sure he is an independent contractor,” said Olaf.  Just then we heard a loud *SNAP* as a clam slapped shut, and the young gentleman in the Clam tank yanked his hand away just in time.  Uncle Olaf breathed a sigh of relief and said “but he signed a contract… the contract says ‘I am not an employee; I am an independent contractor.  I will clean Olaf’s clams.  And if I should lose a hand or two, I will only sue the clam or clams that got me, and not poor Uncle Olaf’.”

I shook my head and told poor Uncle Olaf of the panel decision in the case of Leonard Key v. Los Angeles County Office Education. Leonard Key had signed a contract stating that he was an independent contractor paid to teach music lessons at one of the Los Angeles County schools.  However, the Workers’ Compensation Judge found that Mr. Key was, in fact an employee, and his injury was compensable.  Workers’ Compensation in California is compulsory, after all, and Mr. Key was simply an employee by any other name.  And, after all, the farmers in the Borello case, discussed last time, had signed a contract as well.

The most important thing for Uncle Olaf to remember is the guiding policy of workers’ compensation – to shift the costs of industrial injuries to the produces and not the consumers/public.  Even the Legislature might make efforts to amend the law, defining a contractor vs. an employee based on a long list of factors.

So, dear readers, what should Uncle Olaf do?  Before the young gentleman sticks his hand into another one of Uncle Olaf’s clams, should Olaf pull him out of the tank and cease operations until he can get a workers’ compensation policy?

And so, dear readers, the story picks up just where it left off – there I sat in my dear Uncle Olaf’s kitchen as he ground his hooks into his wooden table, nervously watching the man he hired to clean his prize-winning clams for his Clam sale business, who he thought was his independent contractor but was actually allegedly (your humble blogger is a zealous defense attorney, after all) an employee, place his hands inside the snappiest of Uncle Olaf’s prize-winning clams.  “Scrub from the outside!” he shouted, but the young gentleman cleaning the clams couldn’t hear him…

The California Supreme Court issued its opinion in the case of S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989), outlining the proper analysis for determination of the question of employment or independent contractor status.  S. G. Borello & Sons owned farmland near Gilroy (a place with a wonderful Garlic Festival).  Although they kept regular employees for the various crops grown on these farms, for cucumbers, the nature of the market dictated another approach.  Cucumber harvesting was contracted out to various migrant farm-worker families.

The families were provided with the opportunity to lay claim to a certain amount of plots of cucumbers, were provided with crates into which to harvest the cucumbers, but were otherwise left to their own devices.  The cucumbers were sold to a pickle company in the area, and the profits were shared between the land-owners and the harvesters.

For the multi-week cucumber harvesting season, the harvesters were responsible for taking care of the cucumbers, picking only those ripe and ready for picking, and generally seeing about maximizing profits.  The most aggressive task-masters in S.G. Borello & Sons employ found themselves absolutely powerless at the edge of the cucumber plots, for no employees dwelt there – only independent contractors.

That is, until, the Department of Industrial Relations issued a stop-work order.  Finding that the independent-contractors were actually employees, and uninsured employees at that, the DIR went on the war path against poor Mr. Borello and his sons (as well, effectively, against all other farmers in the Gilroy area that adopted the same practices).

Borello’s argument before the Supreme Court was simple – unlike other crops, cucumbers required a degree of knowledge and skill for harvesting, and the harvest workers were compensated for the final product and not the means of rendering service.  But the Supreme Court found that other factors, primarily found in the Restatement Second of Agency, play into the analysis as well, among them:

1. The right to discharge at will, without cause;
2. Whether the workers is engaged in a distinct occupation or business;
3. Whether the occupation, in that locality, is typically performed by a specialist without supervision;
4. The skill required in the particular occupation;
5. Whether the worker supplies the instrumentalities, tools, and the place for doing the work;
6. The length of time for which services are performed;
7. The method of payment (hourly or by task);
8. Whether the work is part of the regular business of the principal; and
9. The intent of the parties.

The Borello Court noted that “under the [Workers’ Compensation] Act, the “control-of-work-details” test for determining whether a person rendering service to another is an ‘employee’ or an excluded ‘independent contractor’ must be applied with deference to the purposes of the protective legislation.”

The Court also noted that the workers made minimal investment in their work – no heavy equipment but just basic tools.

Other cases followed too.

In the case of Jose Luis Lara v. Workers’ Compensation Appeals Board (2010), for example, the Court of Appeal examined whether a garden-variety handy-man could be an independent contractor.  Lara sustained a pretty serious injury while doing work for a small shop called Metro Diner.  Metro Diner didn’t have Lara covered by its workers’ compensation policy because he had no regular employment – he was called up to do odd work such as trimming bushes along Metro Diner’s roofline.

Lara provided his own equipment, paid his own taxes, and, although he was paid by the hour, was hired by the job rather than on a general basis.  Nor did Metro Diner set Lara’s hours – he was just told to come early or late to avoid interfering with the operation of the Diner.

The workers’ compensation Judge found that Lara was an employee, and the Workers’ Compensation Appeals Board reversed.  In affirming the WCAB’s finding that Lara was a contract employee, the Court of Appeal cited Borello.  Specifically, the Court noted that gardening was Lara’s line of work (and not the Diner’s), that Diner could not control the manner of Lara’s work, Lara had his own clients (other than Diner), and Lara had a substantial investment in his business (lots of tools, equipment, etc.).

As Uncle Olaf scratched his head (very carefully, mind you, as those razor sharp hooks hurt!), I could see that he wasn’t convinced.  His prize-winning-hand-eating-giant-clam-raising mind was working.  What else did Uncle Olaf think he had up his sleeve?

Is that guy you have doing that work you need done an independent contractor or an employee?  Why does it matter?  Well, aside from a whole host of other issues, liability for industrial injuries may hinge on whether that worker was an employee or an independent contractor.

Your humble blogger recently had occasion to visit his uncle Olaf.  For those familiar with the exciting sport of competitive clam-breeding, you’ll no-doubt have heard of Olaf the Clamtastic, world-famous for his exceedingly rare clam-breeding abilities.  He also has a business which sells the Giant Clams he raises, “Olaf’s World of Clams.”  “Uncle Olaf” I said, “who is that nice young man cleaning your prize-winning clams?”  Uncle Olaf looked up from his magazine, Clams and Claims, and peered at his Olympic-sized swimming pool, the one where his giant clams ruled and all others feared to tread.

There, scrubbing the giant clams, was a young gentleman with a nervous look concealed by goggled and a breath mask.

“Oh,” said Uncle Olaf, “That’s Jim – he’s my independent contractor helping me keep the Clams clean.”  As Uncle Olaf turned the page with one of his two hook-hands, I remarked “it’s a good thing he’s a contract worker and not an employee, those clams can be vicious!”  But, the workers’ compensation defense attorney in me felt something was amiss.  So, being the good nephew that I am, I asked Uncle Olaf “how do you know he’s a contractor and not an employee?”

Uncle Olaf smiled, as if his silly nephew couldn’t be any sillier, and said “because I didn’t buy workers’ compensation insurance for him, of course!”

Poor Uncle Olaf…

The State of California does not require independent contractors to be covered by workers’ compensation insurance.  In theory, one could have a thriving business using nothing but independent contractors and saving untold fortunes on workers’ compensation policy payments.

But, the law requires employers to either self-insure or obtain workers’ compensation insurance for their employees.  And, much to Uncle Olaf’s surprise, the nature of a relationship, with respect to employer or contractor, is not determined by the possible employer’s purchase or failure to purchase workers’ compensation insurance.  There is another test out there…

But, let’s start with the basics.

California Labor Code section 3353 defines an independent contractor as “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”  Section 3353 was enacted in 1930, codifying the common law distinction between employees and independent contractors.  But, this distinction wasn’t concerned with workers’ compensation, but rather with tort law.  Whereas an employee could make his employer liable for injuries caused to third parties (imagine an employee-bartender accidentally dropping a crate of fine whiskey on a poor bar patron – an unbearably cruel thought, I know, but one necessary to shock and make the point), the liability buck stopped with an independent contractor.

But, as California Labor Code section 3357 specifically excludes independent contractors from the presumption of employment (and therefore the presumed requirement for the employer to insure or self-insure against those workers’ industrial injuries), the issue is an important one – and case-law expanded the test.  So, poor Uncle Olaf can’t put his checkbook away just because he never took it out to insure against a worker’s injuries.  Uncle Olaf can’t even put his checkbook away just because he doesn’t micromanage the work or “control the means by which such result is accomplished.”

After all, Uncle Olaf thought that, so long as he doesn’t stand over the young gentleman’s shoulder… hovering… judging… making little comments and directing his every move (“you missed a spot; scrub that clam harder, put your hand inside the clam to get a better grip…”) the young gentleman could remain an independent contractor and Uncle Olaf could laugh at the competitor Clam stores paying insurance premiums every month.

But the California Supreme Court has a different take on the proper analysis in this case.  What’s the test?

Sorry to “clam up” on you now (Get it? Because the story is about clams? Get it?), but come back on Wednesday to see what Uncle Olaf missed.

Welcome back, dear readers!  The sun is shining, Friday is upon us, and the little hand striking 8 on your clock signals the conclusion of A Tale of Two Broken Hearts.

Your humble blogger directs you to the recent case of Kevin Kennedy v. City of Oakland.  Mr. Kennedy, a firefighter, had sustained a stroke while he was off work and filed a workers’ compensation claim against the City of Oakland, reasonably arguing that the stroke was “heart trouble” as contemplated by Labor Code section 3212.  After an Agreed Medical Evaluator found that Mr. Kennedy’s stroke was entirely caused by a congenital heart anomaly, and had nothing to do at all with any work-related activities or trauma, the workers’ compensation judge found that the City of Oakland was not liable for the injury.

Mr. Kennedy’s attorney made a fairly logical argument:  Labor Code section 3212 prohibits the attribution of heart trouble to “any disease existing prior to that development or manifestation” of heart trouble.  Additionally, the same Labor Code section requires heart trouble in firefighters to be presumed industrial, although this presumption may be rebutted by other evidence.  Here, there is no evidence available with which to rebut this presumption, because the AME found that 100% of the causation should be attributed to the congenital heart condition.

The workers’ compensation Judge, however, found that Mr. Kennedy could not recover – based on the opinions of the AME, the stroke had absolutely nothing to do with Mr. Kennedy’s employment.

Applicant petitioned for reconsideration, and the Workers’ Compensation Appeals Board granted reconsideration, reasoning that Mr. Kennedy’s patent foramen ovule was a condition existing prior to the development or manifestation of the stroke, and that Labor Code section 3212 necessitated a finding of compensability.  The Court of Appeal denied defendant’s petition for a writ of review.

In issuing its opinion, the WCAB was consistent, echoing a similar decision in the matter of Karges v. Siskiyou County Sheriff, finding a deputy sheriff’s congenital heart condition compensable under Labor Code section 3212.5.

So… what’s to be done?  Common sense and a basic inclination for fairness militate against this outcome.  We’re not talking about a weak heart being aggravated by work conditions, but rather a firefighter at peak physical fitness succumbing to a condition with which he was born and an illness in which his work played no part.  It’s entirely possible that if Mr. Kennedy had spent his life behind a desk, much like his imaginary twin brother Kenny, his heart would have been strained by office junk food and a sedentary lifestyle, much like your humble blogger’s.

As promised, here are a few crackpot arguments to be used only by the most desperate in such cases.  Your humble blogger doesn’t know if these will work, but if they are the only alternative to writing a big check, perhaps they are worth exploring.

1. As with the Karges decision, the argument should be raised that Labor Code section 4663 is the more recent law, and therefore reflects the more current legislative intent.  In litigated matters, judicial authority should be used to further this Legislative intent and not find impairment caused entirely by non-industrial factors to be compensable.
2. In the writ denied case of Michael Yubeta v. Workers’ Compensation Appeals Board, a corrections officer’s claim for heart disease was ruled non-compensable when the Agreed Medical Evaluator found cardiovascular disease manifested prior to the start of his tenure with the Department of Corrections.  In the Kennedy, matter, the defense might argue that the patent foramen ovule is the “heart trouble” contemplated by section 3212, and it manifested itself at birth, before the term of service with the fire department.  Mr. Kennedy’s stroke, being directly and exclusively caused by this manifestation, should not be presumed compensable.

   After all, the poor guy had a hole in his heart – not in the sense that he couldn’t love or open up to other people, but the wall to his heart had an actual hole.  Studies had shown that this practically guaranteed that he would sustain a stroke at some point in his life.  (Understandably, this one is a stretch).

3. Webster’s dictionary defines “attribute” as “to regard as resulting from a specified cause.”  However, as the Labor Code does not use the words “apportionment” and “attributed” interchangeably, we can only suppose that they mean two different things.  So, while section 3212 prohibits us from attributing heart trouble for purposes of AOE/COE, perhaps we are still permitted to “apportion” the heart trouble to non-industrial causes.  If such is the case, the Kennedy matter should have found the stroke compensable, and yet apportioned 100% to non-industrial causes.

In other words, Mr. Kennedy should get the medical treat

Last time, the scene was set for the story of Keven and Kenny, twin brothers, each born with a heart defect that resulted in their respective strokes.  As Kenny the workers’ compensation defense attorney found himself with a take-nothing order because the Agreed Medical Evaluator in his case found that the stroke, and all resulting permanent disability, was caused entirely by Kenny’s congenital heart condition, Keven the firefighter’s attorney cited Labor Code section 3212, for the proposition that a firefighter’s heart trouble can in no case be attributed to any disease existing prior to that development or manifestation.

In other words, if Keven was born with a time-bomb in his heart, and it exploded, right on schedule, the day after he started a job as a firefighter, section 3212 would kick right in!

So, does Keven’s attorney have all his bases covered?

Well, first, he would have to prove that Keven is a firefighter – something he could establish without much difficulty (showing up at the Board with a fire axe IS not recommended, even if you believe you’ve got “an axe to grind.”)  Then, he would have to prove that Keven’s injury could be considered “heart trouble.”  This should be no problem, considering the fact that case-law has established that there are very few non-orthopedic injuries that might be considered not heart trouble.  (Muznik v. Workers’ Comp. Appeals Bd. (1975).)

But what about that pesky requirement of “in the service of the office…” as required by Labor Code section 3212?  If the firefighter is sitting in his and his brother’s gazebo, drinking coffee on a beautiful Sunday morning and indulging in that antique of an information-delivery device that people so often read, is he really in the service of the fire department?

For example, the Court of Appeal in Geoghegan v. Retirement Board (1990) upheld a retirement board’s denial of benefits for a firefighter who sustained a heart attack while skiing.

Now, before the applicants’ attorneys out there start mumbling something about a ski-lodge burning and a San Francisco firefighter being called in to ski down the slopes and shovel ice onto the flames, your humble blogger assures you, this was a vacation.  The treating physician found that the heart attack was caused by the altitude and Mr. Goeghegan had recently passed the fire department’s physical exams with skiing flying colors.

The Board of Retirement had rejected Goeghegan’s application for retirement benefits, and he appealed.  There, the Court of Appeal rejected Goeghegan’s argument that Labor Code section 3212 applied and that he should be, at that very moment, counting his money instead of appealing his case, because the trial court had found that “the conclusion is inescapable that plaintiff’s disability was due to the myocardial infarction caused by the cold and altitude encountered while skiing.”

Previous decisions, as cited by the Goeghegan Court, included Turner v. Workmen’s Comp. App. Bd. (1968) and Bussa v. Workmen’s Comp. App. Bd. (1968).  In Turner, a police officer’s heart attack sustained while on duty after a day off spent abalone fishing was found non-industrial, and the presumption of Labor Code section 3212.5 was rebutted.  In Bussa, a firefighter’s exertions on a second job were used to rebut the presumption of industrial causation for his heart attack.

Well, Keven’s attorney could easily fire back that those three cases can be distinguished because they don’t touch on the anti-attribution clause (“[t]he … heart trouble … so developing or manifesting itself … shall in no case be attributed to any disease existing prior to that development or manifestation.”)  And, as the Agreed Medical Evaluator in Keven’s case had found that 100% of the disability was caused by a congenital heart defect, that leaves (let me get my calculator here…) 0% available for causes NOT “attributed to any disease existing prior to that development or manifestation.”

Geoghegan was already a firefighter when he sustained his heart attack; Turner was already a police officer when he sustained his heart attack; and Bussa was already a firefighter when he had his heart attack.  On the other hand, each of these cases showed an injury attributed to something other than a condition in existence prior to the start of the applicant’s career with the fire or police department.

Keven, on the other hand, was not exerting himself at all – he was having coffee with his twin brother and their respective families over a relaxing Sunday breakfast.

But doesn’t something seem strange about sticking the fire department with the bill for a condition which existed at birth?  After all, we’re talking about medical care and temporary disability and permanent disability and maybe even a pension.  That’s not to mention the litigation costs.  The city in which Keven is a firefighter could be deprived of a firetruck or several firefighters’ salaries if it is liable for Keven’s stroke.

So, dear readers, what happens? Come back on Friday and, not only will you be treated to the true story, but you’ll also get some crackpot arguments from your humble blogger with which to try your luck, should you ever find yourself in the fire department’s most unfortunate position.

Imagine, if you will, twin boys born on some sunny day some forty-five years ago.  Though neither one of the boys, nor their parents, nor even the delivering doctors knew that both boys were born with a heart condition.  This congenital heart anomaly, a patent foramen ovale, left a small hole open in the walls of each brother’s heart, exposing them to higher risks of stroke.

These twin brothers, let’s call them Keven and Kenny, seemed to be joined at the hip.  They enjoyed all the same activities, all the same food, went to the same school, and, when they decided it was time to purchase homes of their own, bought two adjacent houses.  Being as close as they were, they tore down the fence between their properties and right in the middle built a small gazebo where they could enjoy breakfast with their families every weekend morning.

In choosing a profession, Keven wanted a job that would keep him physically fit while allowing him to serve the community and even save the lives of his fellow citizens.  So he became a firefighter.  The job kept him physically fit and allowed him to maintain a clean bill of health… except for that congenital heart anomaly, which no one knew about.

Kenny, on the other hand, decided to pursue the absolute highest calling – the profession which the bravest and noblest aspire to.  He didn’t want to become a physician, or an engineer, or even a scientist.  He decided to become a workers’ compensation defense attorney (not unlike your humble blogger).

Still, the two twin brothers were in every other respect exactly alike, and spent every Sunday morning having breakfast together in that shared gazebo, along with their wives and children.

Then, tragedy struck!  One morning, as Kenny and Keven sat next to each other, enjoying the morning air, each with a newspaper in the left hand and a piece of toast in the right, they suddenly sat straight up, looked into each other’s eyes, and both collapsed to the ground with strokes.

Their families rushed them to seek medical treatment and, fortunately, each of the two brothers recovered.  Before long, they were sitting next to each other in their shared gazebo, when Kenny had an idea.  Why not file workers’ compensation claims for the strokes – surely, the stress of being a firefighter caused Keven’s stroke.  And, if being a firefighter is stressful enough to cause a stroke, then being a workers’ compensation defense attorney is even more so!

As the cases progressed, each of the two brothers agreed to use an Agreed Medical Evaluator, and each AME came to the same conclusion:  the AMEs both found that, in their respective cases, the “stroke … occurred in an individual whose only major risk factor for stroke in terms of this industrial analysis appears to be his congenital heart defect … all of his conditions apportion 100% to non-industrial causation.”

Kenny was crushed – his case was effectively at an end as the workers’ compensation Judge ordered him to take nothing.  After all, the AME had found that there was only one cause for his stroke – a non-industrial condition acquired at birth.  How could any legal system, short of denying a defendant-employer due process, require workers’ compensation payment for something so patently and obviously un-related to any work causes?  Keven’s case, on the other hand, was just warming up.

Keven’s attorney argued that, under Labor Code section 3212, “any heart trouble that develops or manifests itself during a period while [the firefighter] is in the service of the office, staff, department, or unit … shall be presumed to arise out of and in the course of the employment.”

Now, isn’t that presumption rebutted?  After all, as in both the case of Kenny and Keven, the Agreed Medical Evaluators have found that the sole reason for both strokes was the congenital heart condition – exactly 0% of the causation had anything to do with work as a firefighter or as a workers’ compensation defense attorney.

Well, as Kenny feels once again misused and ignored by the system he so gallantly serves, Keven has another line of defense:  “The … heart trouble … so developing or manifesting itself … shall in no case be attributed to any disease existing prior to that development or manifestation.”

How will Keven’s argument fare?

Dear Readers – thank you for your continued visits.

In appreciation of your patronage, your kind e-mails, and even the angry applicant and lien-claimant messages, WCDefenseCA is working on something very special to be revealed next week… We’ll see you Monday!

Workers’ compensation is not a catch-all.  It is not meant to correct every ill or misfortune or unpleasant reality of life.  Workers’ compensation is limited to the effects of industrial injuries.

Now that we have that news-flash out of the way, allow me to relate to you, my dear readers, the recently writ denied case of Alemnesh Haile v. Fair Oaks Estates.  Haile worked as a patient caregiver, but then injured her right shoulder.  She was returned to work after her employer was able to find a job for her within her work restrictions.

Unfortunately, Haile’s father fell ill and she purchased a plane ticket to visit him in Ethiopia.  Compounding her misfortunes, her employer did not approve her requested leave of absence for the duration of the trip.  Therefore, on what everyone knew would be her last day, she picked up her final paycheck, and flew to Ethiopia to be with her father.

The evidence seemed incontestable that her loss of employment was solely due to job abandonment, and had she shown up on her next assigned day, she would have still had a job.

At this point, it may be appropriate to repeat: workers’ compensation is not a panacea.

Applicant claimed temporary disability benefits, even though she had abandoned her job and a job within her medically-imposed work restrictions was available before she left.

Well, fortunately, the workers’ compensation Judge, the Workers’ Compensation Appeals Board and the Court of Appeal were little moved by applicant’s claim.  The WCJ rejected applicant’s statement of the rule that “anything less than willful misconduct should not deprive an injured worker of temporary disability benefits,” noting that adopting such a rule “would force the WCAB to (improperly) interfere with legitimate exercise of managerial discretion.”

For more on job abandonment as a shield to temporary disability benefits, see the panel decision in the case of Wilbert Lee v. Coca-Cola Bottling Co. (2009) (“since the applicant refused modified work, and the defendant testified at trial that it offered – and would have continued to offer – modified work within his restrictions, the applicant is not entitled to temporary disability indemnity”).

We’re all sympathetic to applicant, but neither the employer nor its insurer should have to pay for such trips – if you turn down available work, you’re not entitled to temporary disability benefits.