WCDefenseCA

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.

Yesterday we discussed the use of the Benson decision and how we can break up large permanent disability ratings into smaller (and cheaper) ones.

But what about large periods of cumulative trauma?

Well, look to see if there were any gaps in the cumulative trauma or any periods of disability dotting the timeline of alleged disability.

In the case of Ferguson v. WCAB (1970) 35 CCC 452, the applicant claimed a cumulative trauma, but had a period of disability in the middle of the timeline for which he was off work.  The Board held that, under Labor Code § 3208.2, the applicant actually sustained three injuries:

(1)    A cumulative trauma ending at the time of the specific injury;

(2)    A specific injury

(3)    A cumulative trauma beginning after the applicant returned from disability for the specific injury, and ending with the last day worked.

If you’re faced with a long period of cumulative trauma, try to look for periods of disability.  A theory with some potential, one which I’m not aware of having been tried yet, is to argue that periods off work for non-industrial injuries should serve to break up cumulative trauma into separate injuries as well, akin to the specific injury in Ferguson.

Once you use Ferguson and § 3208.2 to effectively break up the single cumulative trauma into several little ones, write to the Qualified or Agreed Medical Evaluator requesting that each injury be given its own rating under Benson (Benson v. WCAB (2009) 170 Cal.App.4th 1535) and Labor Code § 4663.

Remember, permanent disability indemnity goes up drastically as you climb the impairment ladder.  One of the best ways to bring that impairment number down (as well as the amount the applicant will eventually be entitled to) is by breaking the whole impairment into its individual parts.

Good hunting!

Ready for a discussion of Benson and related authorities that lasts the span of a few minutes?  California Workers’ Compensation allows the defense a few maneuvers here and there to keep things interesting.  Here’s what you need to know about Benson.

Each injury, past or present, gets its own rating and the impairment of an applicant gets broken up into injuries and causes.  (Exception: if there is no way for the physician to parcel out the individual injuries with reasonable medical certainty, then a combined award may be appropriate.)

Pre-SB 899, the rule governing multiple injuries to one body-part was articulated in Wilkinson v. WCAB ((1977) 42 CCC 406).  The rule there was:  if there are several injuries to the same body part that become permanent and stationary at the same time, there is no apportionment and there is one massive impairment rating.

This means that four injuries to a body part that each cause an adjusted 5% disability ($2,760.00 x 4 injuries = $11,040.00) would actually be calculated as 20% disability ($17,365.00).  Mind the $6,325.00 gap – imagine the difference with the higher impairment brackets!

Enter SB 899 and the case of Benson v. WCAB (2009) 170 Cal.App.4th 1535.  Benson held that “each distinct industrial injury [must] be separately compensated on its individual contribution to a permanent disability.”  (Benson, supra, 170 Cal.App.4th at p.  1560.)

Remember to cite Labor Code § 4663 as well, especially subsection (b): “Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the permanent disability.”

If a treating or evaluating physician doesn’t include a discussion of apportionment, even amongst the various claimed injuries, then the report is not complete under subsection (c).  Usually, a letter requesting a supplemental report should do the trick.

So if you have an applicant claiming both a cumulative trauma and a specific injury, invoke Benson and break that claim up into pills a bit easier to swallow.

But that’s not all Benson is good for!  What if you have a claim for a lengthy period of cumulative trauma – one which comes with a QME report of heavy impairment rating?

Video: 

The dramatic conclusion… tomorrow morning.

Sally the secretary, while seated at her desk, bends over to pick up a file.  Hearing a pop in the back and immediately feeling pain, she then undergoes a series of treatments, including laminectomy and fusion on the L4-5 discs.  Since this is a pre-2005 injury, at high noon, the dueling Qualified Medical Evaluators meet to settle their sides’ differences.

Applicant QME’s weapon of choice?  The standard go-to: 100% industrial causation, no apportionment.

Defendant’s QME answers with a 70% non-industrial causation – Sally’s multilevel degenerative disc disease and degenerative scoliosis.

Of course, Sally argues that (1) there is no prior award; and (2) she was, as she says, asymptomatic before her industrial injury.  So why should there be any apportionment at all?

Defendant had nothing to rely on at all, except some vague and generally rejected reference to the Labor Code.

Whose shot proved the truest?  Well, the answer to that depends on who you ask.  The WCJ issued a Finding and Award based on applicant’s QME’s opinion, finding 100% industrial causation.  The Appeals Board saw it differently…

Relying on Labor Code § 4663, the Appeals Board sided with defendant in this case, saying the law is the law, and no symptoms need have existed prior to the industrial injury.   Applicant’s writ of review was denied.

It just goes to show you – sometimes it really is worth it to go through the recon process.   When the case comes out on Lexis, take a look for yourself:  Frances LaRue v. Workers’ Compensation Appeals Board, State Compensation Insurance Fund.