WCDefenseCA

As everybody knows, it is international California workers’ compensation death benefits week.  Much like our friends in France, Japan, and, of course, Brazil, WCDefenseCA is also covering various death benefits matters this week.  So, for today’s post, I have the privilege of presenting to you the panel decision of Vicente Zavala v. Sonoma Compost Company, LLC.

In Zavala, applicant sustained an admitted injury which resulted, unfortunately, in his death.  His widow, daughter, and grandson all claimed death benefits.  His widow easily established total dependency based on the presumption of Labor Code section 3501.  But what of his adult daughter and her child?

Labor Code section 3502 allowed the determination that the daughter was a total dependent, and the workers’ compensation Judge rejected the argument that the public assistance income counts as “other income” to negate a total dependency finding.

With the grandson, however, it gets a little tricky.  The grandson is a minor, so is he entitled to benefits until he turns 18 under Labor Code section 4703.5?  He wasn’t, after all, the decedent’s son, and decedent was not acting in loco parentis.  Furthermore, Labor Code section 3501(a) specifically excludes minors from the presumption of total dependency when there is a surviving total dependent parent, such as the child’s mother.

In short, the Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration only as to the benefits to be awarded the grandson – he will not be a presumed total dependent.

*** UPDATE*** Court of Appeal has denied a petition for a writ of review.

An interesting panel decision sided with the defense on the issue of death benefits, and your ever-informative blogger is eager to share it with his ever-informed readership.  (The case is Devon Davis (Dec’d) v. Harrison & Nichols Trucking).

Employee-driver dies in as a result of an industrial injury, and his widow and minor son petition the Workers’ Compensation Appeals Board for death benefits.  Following a trial, the workers’ compensation Judge awards $250,000 to the decedent’s son and $25,000 to the widow.  The WCJ, however, reserves jurisdiction to determine if the son will be considered mentally incapacitated at age 18.

Both sides petition for reconsideration.  The widow claims that Labor Code section 4702(a)(2) allows, in cases of one total dependent and one or more partial dependents, a death benefit of $290,000, with $250,000 going to the total dependent.  Under her theory, she gets the remainder of the pot, which is $40,000.  The Judge, however, rightly rejected this argument in favor of Labor Code section 4703, which caps the recovery of partial dependents at $25,000.  The WCAB affirmed this decision and denied applicant’s petition for reconsideration.

Defendant’s petition for reconsideration, however, had to do with the WCJ reserving jurisdiction to determine the son’s dependency when he should join the age of majority.  The WCJ reasoned that it would be premature to make a determination as to the son’s capacity to work.  Here, the WCJ ran afoul of Labor Code section 3502, which requires determinations of dependency to be made at the time of injury of the employee.

Of interest here is that the WCAB, in dicta, noted that there was no evidence in the record to establish the widow’s dependency, but that the issue was not raised by the defense.  There are explanations for this – prior agreements between the parties, defects in the record, or simply an administrative gap between the record and the documents delivered to the WCAB.

In any case, it serves to point out that the issue of dependency should not be taken for granted – the Death without Dependents unit certainly yields no ground on this point lightly – nickels, dimes, and dead men’s shoes are all fair targets.  Well, neither should you – there is no reason why the defense should presume dependency, even if the Board and the applicant’s attorney are rushing to do so – there are all sorts of living arrangements with secondary income, cash jobs, etc.  A little snooping can go a long way.

So let me get this straight… applicant-nurse is “attacked” by a teen-aged patient and sustains a scratch and a bruise.  She shrugs it off and goes about her day.  Six days later she has a stroke (arguably caused by her pre-existing, non-industrial hypertension) and then dies more than a year later.  The panel Qualified Medical Evaluator finds her stroke and death to be non-industrial… and somehow the workers’ compensation Judge still comes down on the side of the applicant?

In the case of Amelia Mendoza (Dec’d) v. Workers’ Compensation Appeals Board, applicant nurse was evaluated for her scratch and bruise while she was suffering from non-industrial hypertension and high blood pressure.

The workers’ compensation Judge went so far as to say that the panel QME was a doctor “hired by defendant” and disregarded his opinions as influenced by a “bias in favor of a hospital where he may wish to practice and a defendant who he may wish to do QME work for.”  Still no word on whether chiropractor QMEs can be disqualified for “bias” because they may want to later serve as treating physicians for the applicants they evaluate.

After the trial, the WCJ awarded death benefits when no claim for death benefits had been made and the only issues at trial were Arising out of Employment/in the Course of Employment (AOE/COE) and applicant’s attorney’s fees.

So what did the WCJ base his conclusion on, if not the opinions of the “hired” and “biased” panel QME?  The treating physician – the one who:

(1) relied on the widower-husband’s accounts of the “attacks” who was not present during the time of the attacks;

(2) relied on a report of a head injury (which were not mentioned in any contemporaneous medical reports); and

(3) somehow found a causal link between applicant’s high blood pressure and the scratches she sustained during the “attack” simply because both were observed at the same time.

The Workers’ Compensation Appeals Board, in granting defendant’s petition for reconsideration, held that the WCJ appeared to imply that “when an employee with pre-existing nonindusrial hypertension seeks treatment for a minor industrial abrasion and exhibits concurrent elevated blood pressure, the employer thereafter becomes liable for all treatment and consequences of the employee’s elevated blood pressure.  That is not an accurate interpretation of workers’ compensation law.”

Not easily discouraged, applicant filed a petition for writ of review … which the Court of Appeal denied.

Appeals are expensive and time-consuming, but they are often worth it, especially in cases like these.  The defense stuck to its proverbial guns and didn’t allow its case to get steamrolled.  WCDefenseCA sends its salute to the Huntington Hospital. 

When workplace violence occurs, and when employees are injured, who has to pay?  Well, the answer, often enough, lies not in the “who” but in the “why” – what was the motive for the violence.  As we saw in a previous post, sometimes the motive for a workplace murder remains a mystery, and in those cases the applicant’s surviving dependents can usually recover a death benefit, the workers’ compensation system giving them the benefit of the doubt.

In one recent case, Mariela Paredes (Deceased), Efren Caprio v. Ralph J. Maiello DDS, Inc., applicant’s mother was murdered by her widower when he came to the dental office where she worked and opened fire, shooting four people and killing her.  You may have even seen this one in the news.

The decedent’s widower, the one pulling the trigger, discovered that she had been having an affair with a co-worker, having been informed by family members who worked with the deceased.  His own investigation revealed over 5000 minutes of cell-phone conversation between the two and one nude photo sent by his wife to the man she was having an affair with.

Decedent’s widower made threatening phone calls to the phone number on the cell phone records, and repeatedly made comments to the effect he was going to come to her office and do something.  Decedent persuaded her co-workers that he was not actually going to do anything, but was just blowing off steam with empty talk.

After decedent’s murder, the applicant’s guardian ad litem pursued a claim for death benefits, claiming that the death was sustained in the course of and arising out of employment.

The attorney for the defense argued that the death was not a result of anything work-related, but was purely personal in nature, a position with which the workers’ compensation Judge agreed.

The bottom line in this case is that the connection to the employment was pure coincidental – decedent’s widower had tried to catch her in the act away from work, but was not able to do so.  Because there is no real connection between the injury/death and the employment, other than an accidental stage, the injury itself is non-industrial.

But what about the three other shooting victims?  If they have no connection to decedent’s widower, are their claims industrial? We’ll have to wait until we see those claims come forward.

What is the formula to determine if parents or siblings are dependents?  Under Labor Code section 3501, minors and incapacitated adults are presumed dependent on a deceased parent, and a spouse earning less than $30,000 in the twelve months before the death is presumed a dependent as well.  In all other cases, Labor Code section 3502 allows a factual determination to be made as to who and to what extent a person is a deceased worker’s dependent.

The recent panel decision of Guadalupe Ayon (Deceased) v. Cal Grain and Hay addressed this very issue, holding that a deceased worker must have contributed more to the household than his or her own expenses – any contribution amounting to less than this would only serve to make the deceased worker less dependent on that household.

In Ayon, a deceased worker’s family members, including his mother and sister, claimed dependent status and sought death benefits.  Their claim was supported and defended by the defendant-employer, eager to help them prove their case and more than willing to accept full liability for their various dependency claims.

Why was the defendant so willing to share a foxhole with the applicant?  Because there was another player on the field – the Death Without Dependents Unit.  DWD, drawing its statutory authority from Labor Code section 4706.5, made the claim that the workers’ family should be left in the cold, and that defendant should instead pay to DWD the statutory sum of $125,000.00.

Through deposition testimony, it was discovered that the deceased made only occasional contributions to the household, hardly amounting to the support he received from the common pool.  The Workers’ Compensation Appeals Board relied on the case of Smith v. Workers’ Compensation Appeals Bd. (Walker), which articulated the formula of weighing a deceased worker’s contributions against the costs of his own support to determine who was the dependent and who was the depended upon.

As the applicants failed, in this case, to carry their respective burdens regarding dependency, the DWD unit was awarded their long-awaited dead men’s shoes.

Proper discovery can help to limit the amount of dependents to those actually dependent upon a deceased worker.  Your ever-helpful blogger humbly suggests that you keep this case in mind when next you deal with communal living arrangements or dependents of this sort, but, like the defendant in this case, weigh your liabilities against the DWD unit, which will no doubt be lurking near every funeral.

There are times when, as a California Workers’ Compensation defense attorney, one can’t help but sigh in frustration.  Now, I don’t sigh in frustration when I need to put in extra hours on a case, when an issue is challenging, or when opposing counsel decides to go by Dick instead of Richard.  These are just parts of the job and, after all, “this is the business we’ve chosen“.    What makes your overworked and underfed blogger sigh?

Imagine reading through a file, and realizing that the procedures up to this point were handled flawlessly by a dedicated and knowledgeable adjuster, the law is clearly on the side of the employer, and the defenses are all mustering to protect the defendant from liability.  Then you hear the voices…

First there is the voice of applicant’s attorney “blah.. blah… blah… injustice… blah… blah.. unfair… blah… blah… my fee!”  Then there is the voice of the Workers’ Compensation Judge: “Well, Mr. Grinberg, don’t you think it’s unfair to deny a poor widow her husband’s death benefits over some mere technicality?”

In the case of Kathleen Brezensky (widow) and Chester Brezensky (Dec’d) v. Workers’ Compensation Appeals Board, that “mere technicality” was the statute of limitations under Labor Code section 5406(c).

Applicant sustained an industrial injury in 2002, and died in 2009.  An application was filed in 2010, and defendant raised the statute of limitations defense.  The WCJ concluded that the case could proceed and the statute of limitations defense failed because applicant did not know, until after the death of her husband, that the industrial injury of 2002 was the (theorized) cause of his eventual death.

Defendant petitioned for reconsideration, and the Workers’ Compensation Appeals Board rescinded the WCJ’s order and issued a “take nothing” order for the applicant-widow.  Relying of a California Supreme Court case, the WCAB found that there can be no claim for death benefits if the death occurs more than 240 weeks after the alleged death-causing injury, regardless of applicant’s awareness of what caused the death.

In other words, the 240 week limit applies even without any knowledge on the part of the applicant.

One of the benefits of operating in a system where anything can happen, is that… well… anything can happen, including the proper application of the law, without passion or prejudice, even in the cases of sympathetic applicants.  Fortunately, the defendant in this case chose to go the distance and petition for reconsideration.

The Court of Appeal subsequently denied applicant’s petition for reconsideration.

Your humble blogger has, at times, been called many less-than-flattering names for his refusal to side with poor widows and orphaned children in such cases.  All my sympathies go to those poor people injured, unable to work, or grieving for a lost family member.  But when one’s heart overflows with sympathy, we send flowers and a card – we don’t rob a blameless victim, like the employer.

What happens when a man is murdered on the job, but no one (except, perhaps, the at-large murderer) knows the motive for the slaying?  Enrique Vicente Rincon, deceased, was working in a liquor store when a hooded man walked in and shot him.  The gunshot wound resulted in Mr. Rincon’s death and the hooded gunman escaped.

The widow filed a claim for death benefits (Rincon v. South Bay Liquor & Market), and the defendant elected to put the issue of Arising Out of Employment/Course of Employment on trial.

The defense conceded COE, recognizing that the death causing injury occurred while Mr. Rincon was on the job.  But what was the motive for the murder?  If it was a personal vendetta against Mr. Vincent, then it can hardly be AOE – an ex-girlfriend, a driver cut off the day before, an angry neighbor in the final stage of the Hatfield – McCoy feud.  None of these have to do with the job, and should not be compensable (also known as the “personal risk” doctrine).

The investigating police officers could only speculate – it could have been a gang initiation, or a robbery in which the robber lost his nerve (explained by the fact that no money was taken during the crime).  There was really no way to know, unless the murderer was caught, or at least identified.

The Workers’ Compensation Judge applied the “mysterious circumstances” doctrine, holding that, because the motive for the murder was unknown, the death must be presumed to satisfy both the AOE and the COE requirements for finding the injury compensable.

The Workers Compensation Appeals Board adopted and incorporated the WCJ’s opinion.

Sometimes, nothing can be done – the facts aren’t there or there is no way to get them.  But in cases like these, the employer needs to do an even better job investigating the case than the police.

Who had a motive to kill the employee?  Facebook, e-mails, cell phone logs (and texts) should all be subpoenaed.  The only real restraint on the thoroughness of the investigation should be the cost (with no medical treatment and statutory caps on recovery, the limits are easy to see).

Mr. Rincon is the tragic victim of a terrible murder.  Unfortunately, the employer was victimized by California’s Workers’ Compensation system as well.