Archive for the ‘COLA’ Category

Employer as Nanny

November 28th, 2011 No comments

I hope my dear readers had a wonderful Thanksgiving.  I wish I had a great decision to show you on this welcome-back-to-work morning.  But, sadly, all I have for you is more pocket-picking of a California employer.

The Court of Appeal recently declined to review the decimation of Bridgestone Firestone in the case of Bridgestone Firestone v. Workers’ Compensation Appeals Board (Ronald Fussell).

Applicant, a diabetic, was a territory manager for defendant-employer when he sustained an industrial injury to the left ankle.  Following two surgeries and the use of a custom ankle brace, applicant eventually returned to work, only to have his condition worsen.  Ultimately, applicant underwent an amputation of his left leg below the knee.

The Workers’ Compensation Judge found applicant to be 100% disabled, and awarded over $220,000 in attorneys fees to his attorney, and COLA payments beginning in 2004 (the WCJ’s award predates the Supreme Court decision on proper calculation of cost of living adjustments).  In doing so, the WCJ rejected the opinion of the treating physician that 40% of the disability was caused by applicant’s “non-industrial non-compliance with activities of daily living …  non-compliance has every thing to do with choices that the patient makes on his own, despite knowing that he is not following the doctor’s recommendations.”

The basis for this rejection was applicant’s testimony that, because he lived in a second-floor apartment and there was no elevator, he had to “hop” on crutches to get up the stairs, and could only use the doctor-recommended wheel chair while actually in the apartment.  The WCJ reasoned that the defendant could have built an elevator for applicant or, in the alternative, relocated applicant.  Therefore, it was all defendant’s fault and no apportionment is called for.

I suppose the image of a cackling adjuster comes to mind, smoking a cigar and smiling sinisterly at the thought of the poor applicant not being able to effectively use his medical equipment.  The more likely scenario, of course, is that applicant said nothing to his doctors, employer or the adjuster until it was too late.  There was likely never an opportunity for defendant to act, because there was no knowledge of a need to act.

Medical apportionment based on applicant’s pre-existing diabetes was likewise rejected, on the grounds that applicant had never sustained trauma to his left ankle before the industrial injury that was the subject of this case.  The opinions of applicant’s treating physicians, concluding that the diabetes had slowed the post-surgical recovery process, did not sway the WCJ or the WCAB.

Before defendant could blink, a simple left ankle injury resulted in an amputation and a 100% PD award.  The only parting advice I could offer from this case is to obtain accurate living conditions information from the applicant, such as where he lives and his domestic set-up.  This can be done through a deposition or through a written questionnaire (although a deposition is preferable).

With this information, it is possible to keep the treating physicians apprised of whether their recommendations are feasible given the applicant’s circumstances.

Sipping COLA

August 12th, 2011 No comments

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.

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