WCDefenseCA

The “going [to work] and coming [from work]” rule is a subject that surfaces now and then in the world of workers’ compensation.  After all, injuries can happen anywhere, so why not while going to or coming from work?

The defense generally provides that an employer is not liable for workers’ compensation benefits for injuries sustained in transit between home and work or work and play.  But the defense is not a stone wall, smooth and solid and impenetrable, but rather a chain-link fence, with plenty of gaps, patches, and weaknesses.

In the case of Jesus Felix Castro v. State of California, Department of Forestry and Fire Protection, applicant was a seasonal firefighter, who sustained a devastating injury as a result of a catastrophic car collision while he was on his way to work.  The attorney for the defense naturally raised the going and coming rule – on the way to work means on the way out of the California workers’ compensation system, generally speaking.

But the defense failed.

Applicant presented several witnesses, Mr. Castro’s co-workers, who testified to the effective requirement of bringing one’s own car to work.  There was more than one fire station to staff, and a firefighter never knew where he or she would end up working that day.  As such, employees had to bring their own car to work to get from Station A to Station B, as necessary.

The workers’ compensation Judge and the Workers’ Compensation Appeals Board both held that the injury was compensable.

Bear in mind, learned readers, this holding is not new or off-the-cuff.  This holding was also issued in Smith v. Workmen’s Comp. App. Bd. (1968) “Surely in this day of a highly motorize society we cannot cast the going and coming rule as a protective cloak over the shoulders of the employer who, for his own advantage, demands that the employee furnish the car on the job.”

But this case does serve to remind employers, especially those in the private sector, that there is no such thing as a free lunch – money saved in shifting the cost of the travel between work sites to the employee can cost a lot of money in the form of an otherwise barred workers’ compensation claim.

Recently, your keen-nosed blogger had sniffed out and reported on a case in which a workers’ compensation Judge had awarded an applicant total temporary disability when her employer could not offer her work because, as it turned out, she was in the country illegally.

It appears that the Cubedo decision was not an isolated case but rather the start of what could well be the policy of the Workers’ Compensation Appeals Board.  Though no binding authority by any means, a workers’ compensation defense attorney should be well advised of this possible defense.  Recently, a panel rescinded a WCJ’s award of total temporary disability because any sort of employment: regular, modified, or even alternative, was prohibited by the law after the discovery that applicant was in the country illegally (much like Ms. Cubedo).

In the case of Martin Esparza v. Barrett Business Services the WCAB held that applicant’s inability to work, due to his immigration status, does not render him TTD, and so applicant gets nothing (at least no type of temporary disability benefits).

TTD is not a forgiving fox once let into the hen-house, and the defense attorney dodged a big bullet for his client in this case.  But before the defense community erupts in a choreographed dance number all over the state to celebrate this decision, I urge you to consider two potential dangers on the horizon.

First of all, employers face the risk of prosecution for hiring illegal immigrants.  Some employers think they can turn a blind eye when hiring a new employee, especially to the more glaring social security and application frauds, then suddenly see the light when it comes time to pay out after an injury.  Sooner or later the federal government will decide to refill its coffers through fines and penalties, and employers are always a juicy target.  In other words, be careful who you hire – temporary disability might turn out to be the least of your concerns!

The federal government isn’t the only one with coffers to fill.  If you saw yesterday’s post, you know that California is going to have three more WCJ salaries and pensions to fund.  The state has already created a Death Without Dependents unit to pick the pockets of dead employees and leave their relatives out in the cold.  The state can just as easily create a unit to collect temporary disability that would go unpaid because of immigration status.  And, as DWD generally collects the maximum death benefit for a spouse with no children, a unit of this sort could collect 104 weeks of TTD.

One way or another, by hard-working readers, either California, or the United States Government (or both) will get it’s “due.”

This is an interesting one, but it takes some clarity of thought to keep the party names straight.  Given that today is Friday, your ever-accommodating blogger simply replaced the names with party 1, 2, 3, etc.

Applicant is employed by Party 1, and sustains injuries to his back with three specific dates of injury and one cumulative trauma.  Applicant later leaves the employ of Party 1 and goes to work for Party 2, for whom he is still employed roughly two months later when he sustains another injury in a vehicle accident.

The Agreed Medical Evaluator on the case opines that 65% of applicant’s impairment was caused by the injury sustained while working for Party 2, and the remaining 35% spread out among the injuries sustained while working for Party 1.  With me so far?

Party 1 – 4 orthopedic injuries – 35% impairment causation

Party 2 – 1 orthopedic injury – 65% impairment causation

Applicant then amends his claim to include a psyche injury based on the orthopedic injuries.

The psyche AME concurs with the orthopedic AME in terms of causation.  So Party 1 and Party 2 raise their respective defenses.

Party 1 claims that the injuries sustained while applicant was in its employ are not the “predominant cause” of applicant’s psyche injury, as required by Labor Code section 3208.3(b)(1), and Party 2 claimed that applicant had not been employed for six months at the time of his injury, as required by Labor Code section 3208.3(d).

The Workers’ Compensation Judge knocked out the defense of Party 2, presumably because of the “sudden and extraordinary employment condition,” to wit, a car accident, that is not reasonably to be expected from landscaping work.  But, the WCJ did acknowledge and approve of Party 1’s “predominant cause” defense.

The Workers’ Compensation Appeals Board affirmed and the Court of Appeal denied review.  (Monty Lewis v. Workers’ Compensation Appeals Board (2011)).

Just a thought – let’s say applicant worked for four employers, one after another, and sustained an injury while working for each one.  If the evaluating physician apportioned 25% causation to each employer from the inevitable psyche injury, would the “predominant cause” defense bar the claim?

If the answer is yes, then no matter how legitimate the claim or debilitating the injury, the fact that multiple employers contributed to the impairment would help prevent liability for any of them.  A worthwhile defense to explore in similar circumstances, and a reason for multiple employers to pool their resources and spread causation out thinner than “predominant cause” can tolerate.

Applicant Massoud Kaabinejadian sustained a devastating psychiatric injury and was then persecuted by his employer for reporting said injury, which resulted in him courageously and rightly filing a workers’ compensation claim and a Labor Code section 132a petition as well.

He was so righteous and justified, he needed no attorney to plead his case.  To his shock and dismay, and to the shame of California’s workers’ compensation system, his case failed because of one missing and yet totally unnecessary element.  As discovery and trial revealed, Mr. Kaabinejadian’s case lacked that hairline tether connecting his legal theory to the law.

In the case of Kaabinejadian v. Rabobank and Chubb Group of Insurance Companies, applicant was hired as a senior vice president of credit at employer Rabobank.  Applicant’s job was to review loan applications and make recommendations to approve (or not approve) the loans.

After several months of friction in which applicant repeatedly denied loans previously approved by subordinate loan officers, applicant’s superiors decided that it was time to let this less-than-six month employee go.  At the time of this decision, applicant was already scheduled to meet with his superiors at another office location to participate in new-employee interviews.  His superiors decided to terminate his employment at the time of his arrival, rather than have him make a separate trip or to go to his office location.

The Workers’ Compensation Judge first noted that applicant was pleading his psychiatric injury as a cumulative trauma, allegedly incurred from the first day worked (April 3, 2006) to the last day worked (July 5, 2006) and “continuing thereafter.”  Given that this provided less than six months of employment, the WCJ correctly reasoned that applicant’s psyche claim could only proceed if it was the result of a “sudden and extraordinary employment condition,” which a cumulative trauma could not be.

In other words:

–it can’t be a generic psyche injury because applicant was not employed for at least six months, so his claim was barred by Labor Code section 3208.3;

–it couldn’t be “sudden and extraordinary” because it was a cumulative trauma; and

–if it was a specific injury and incorrectly plead as a cumulative trauma, the only specific injury could have been the termination of employment, which the WCJ described as part of “normal, regular or routine exchanges between employees and the employer … [b]assically, [applicant] was particularly upset and offended by the way in which he was terminated.”

Regarding the 132a claim, the WCJ reminded applicant that the burden is on the employee to prove discrimination, and documentation established the pre-existing intent to fire applicant well before any claim of injury was made.

The Workers’ Compensation Appeals Board was no more generous with defendant’s money than the WCJ had been, denying applicant’s petition for reconsideration and incorporating the WCJ’s report.

When an employer-employee relationship ends, the distance between the two is often enough sprinkled with the ashes of a burnt bridge.  Much like high-school dating, the two can sometimes “still be friends,” but generally there is a screaming match, some crying, and a lot of poisoned words, which may or may not include the spilling of secrets.

That being a tale as old as time, the legislature included as a defense to workers’ compensation claims Labor Code section 3600(a)(10), which bars claims made after termination of the employment relationship.

In the case of Jesus Constanza v. The Torrance Co. (a July, 2011 panel decision), the Workers’ Compensation Judge and the Workers’ Compensation Appeals Board had a rather applicant-friendly interpretation of section 3600.  (A special thanks to Arlene Lea of Sacks & Zolonz for providing me with a copy of the panel opinion.)

Applicant, of no relation to this blogger’s favorite Seinfeld character, worked as a waiter for defendant, when he allegedly hurt his back lifting a box of syrup.  He saw a doctor for back pain, but did not miss any time for work or inform his employer.  (It is unclear, from the panel opinion, if the record of the doctor’s visit merely reflected a hurt back or also a description of how the back came about to be hurt.)

As applicant claims, he continued to have increasing back pain until he was fired in February of 2008.  Defendant was prevented by the WCJ and the WCAB from presenting evidence of the reason for the termination of employment, because applicant testified that the reason was for serving tainted food.  I suppose we will never know if there were other reasons…

After finding himself with an abundance of free time, applicant went to a physician who, in that same month, declared that applicant had sustained a cumulative trauma and was temporarily disabled.

The WCJ ruled and the WCAB affirmed that the section 3600(a)(10) defense was not available because applicant became aware that he had an industrial CT injury only after being fired (See the exception under section 3600(a)(10)(D).)

Just to clarify – applicant feels back pain after lifting a box at work, feels increasing back pain from that point while working, then only after being fired for (at the least) serving tainted food, suddenly realizes the work was causing him to sustain injury.  Meanwhile, the defendant was not allowed to prove that applicant had credibility issues.

However, under Labor Code section 5412, “[t]he date of injury [for a CT] is that date upon which the employee first suffered disability … and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his … employment.” (Emphasis added).

It appears that this WCJ and this WCAB panel is content to let the duty of reasonable diligence, and the defense of section 3600(a)(10) endure death by pieces.

The Court of Appeal and the Supreme Court both denied review.

California Labor Code section 4662 allows for a presumption of total permanent disability in cases of the loss of sight in both eyes, loss of use of both hands, practically total paralysis, and brain injuries resulting in mental incapacity or insanity.  Otherwise, “permanent total disability shall be determined in accordance with the fact.”

Originally part of the labor code since 1917, section 4662 was meant to provide for those completely devastating cases, where the employee reached permanent total disability in the course of service to the employer.  However, applicant’s attorneys have a more “equitable” use for this section.

In the case of Jesus Cordova v. Garaventa Enterprises (2011 panel decision), applicant sustained an injury to the cervical spine, lumbar spine, and left upper extremity when he fell off a tractor, yet held onto the steering wheel, causing his torso to twist.  The Workers’ Compensation Judge awarded applicant 100% PD, reasoning that his medically imposed physical restrictions, combined with the opinions of applicant’s vocational rehabilitation expert, rendered him completely unemployable.

Defendant naturally argued that applicant’s failure to learn to speak English (dare your humble blogger point out applicant’s 15 years of working in the United States?) and the applicant’s lack of success in adult education courses were not its fault.  (In fact, if “[a]pportionment of permanent disability shall be based on causation,” as Labor Code section 4663 commands, shouldn’t permanent total disability be apportioned as well?)

The WCJ, however, saw it differently:

“we all come to the job market with innate limitations.  It is axiomatic that there will always be certain jobs, given one’s level of intelligence, talents, education, characterological disposition, and innate body strengths and habitus that he or she will never be qualified for.  It would be inequitable to factor these into the equation, in determining whether a worker who has sustained a significant injury is totally disabled.  If we were to do so, no injured worker could ever receive an award of permanent total disability, regardless of how catastrophic his industrial injury might be.”

The Workers’ Compensation Appeals Board affirmed the WCJ’s decision.

Your humble blogger will point out, at this point, that there is a (sadly and regrettably) de-published, and therefore un-citable case, Hertz Corporation v. Workers Compensation Appeals Board (Aguilar), in which the Court of Appeal found, that “[t]he finding of vocational nonfeasibility was based in part on preexisting, nonindustrial factors, that is, Aguilar’s inability to read and write English.  Therefore … Herz is not liable for that portion of Aguilar’s permanent disability that is caused by preexisting nonindustrial factors.”

The WCJ’s opinion in this case is a dangerous one – applicant began working with a very limited scope of possible employment, and he was deprived of only a limited scope of employment by an industrial injury.

To suggest that the employer (or insurer) is liable for depriving applicant of a full spectrum of possible jobs, when applicant’s own decision not to learn English or his non-industrial inability to develop other job skills, had previously barred him from anything other than heavy physical labor, flies in the face of Labor Code section 4663.

In any case, efforts to have Aguilar published were met with disapproval by the California Supreme Court (See 2010 Cal. Lexis 7175 – petition for publication denied).  We can expect that future efforts to recognize as non-industrial such limitations as Messrs. Aguilar and Cordova brought to their employment will likewise be met with stiff resistance by the WCAB.

How many times have you looked at the file on your desk (or your computer screen, for those of this blog’s readers in a paperless environment) and rolled your eyes?  You know the claim before you is baseless; you know it will probably lose; you know the applicant is just shaking you down, hoping it is cheaper to pay him or her off rather than litigate the case.  It makes me even less of a happy camper, the thought of the smiling fraudster applicant and the shady attorney getting away with it (or lien claimant and hearing representative, for that matter).

Wouldn’t you like to do something about it?  Wouldn’t you like to increase the cost of doing business on these guys just a little bit?  Wouldn’t you like to recoup a sliver of that money they made you pay out to defend against a claim with so many holes in it, it was previously used in the spaghetti straining industry?

Sanctions are rarely a remedy, and petty name-calling is generally discouraged in the world of California Workers’ Compensation.  So here is a possible solution – the next time you are facing one of these worthless claims, say those two words that involuntarily appear at the forefront of your mind:

Malicious Prosecution!  (This is a family-friendly blog, after all!)

Without going into the details of the underlying workers’ compensation 132a case (applicant failed to carry his burden and was awarded nothing on the 132a claim), the facts are these:

Employer successfully defeated a 132a claim, then filed a complaint in civil court against the applicant’s attorney and law firm. (Naming names is not done here, at WCDefenseCA, as my dear readers know, but upon request I will e-mail you a copy of the Court of Appeals decision, which includes the names of all parties.  Please send all requests to gregory@grinberglawoffice.com).

The trial court and the Court of Appeals both ruled the case can proceed.  Unfortunately, however, the Court of Appeals opinion is an unpublished one.

Let’s all watch this one closely – if we’re lucky, applicant’s attorneys will be forced to think twice before shaking down employers with baseless claims.

Many years ago, I worked in a broom factory (not really, but go with the story).  We would carve our brooms by hand every day – it was a slow and painful process.  One day, the factory owner, Gus, decided to install fancy, shiny new machines that greatly increased the efficiency of the operation.  But the machines were new, and shiny, and scary – a lot of us took the retraining in stride, but one of my co-workers, Jasper, just couldn’t handle the new way things were being done.  And when the economy turned, and the broom factory fell on hard times, the lay offs began.

Jasper kept his job, but he just couldn’t handle the pressure of learning the new machinery and doing the work in a changing environment.  So what did Jasper do?  If your answer is anything other than filing a claim for injury to the psyche (and hypertension), including (1) additional retraining; (2) finding a different job with the broom factory; or (3) quitting and looking for a job with a more traditional broom factory, you probably are not an applicant’s attorney.

Arthur Ecker (The Tribune v. Workers’ Compensation Appeals Board, writ denied), worked for the Tribune as a circulations sales manager.  He claimed to have sustained injury to his psyche and circulatory system over an eleven month period in 2008, proceeding on a theory that the injury resulted from the stress of having to take on new job duties.

Those job duties, of course, were to use computers and Excel spreadsheets.  The Agreed Medical Evaluator and the primary treating physician found that “the requirements of the job were essentially beyond applicant’s capabilities.”

Defendant raised the good faith personnel action defense of Labor Code section 3208.3.  After all, decreases in circulation had lead to a 2/3rd reduction in staff and everyone had to cross-train in responsibilities.  Sadly, the Workers’ Compensation Judge, the WCAB and the Court of Appeal were not convinced by defendant’s arguments.

The WCJ wrote in his Report on Petition for Reconsideration, that he does not doubt the changes in applicant’s duties were not “inappropriate or improper [in] purpose.”  By the WCJ’s reasoning, it was the consequences of the changes that caused applicant’s injury.

By that rationale, when does section 3208.3 apply?  Your less-than-persuaded blogger reckons (as we used to say in the old broom factory) that if applicant’s psyche injury had resulted immediately upon hearing the news of his change in duties, the WCJ would have allowed the defense to stand.

In any case, fair readers, be on your guard against this creeping incursion into the defense of 3208.3.  Perhaps we will see a case with a different result and the force of binding authority soon, correcting this interpretation.

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.

Earlier this month, your diligent and dedicated blogger had occasion to discuss the case of City of Redondo Beach v. Workers’ Compensation Appeals Board, in which the Court of Appeals declined to review a panel decision allowing applicant-embezzler to invoke the 5th Amendment right against self-incrimination to avoid testifying about his criminal acts in a workers’ compensation case.  Now comes a panel decision with a different conclusion, although with slightly different facts.

In the case of Bobby Clements v. George Reed, Inc., applicant was receiving temporary disability benefits after sustaining an industrial injury.  However, effective deposition questioning revealed that he had his own wheelchair lift company.  When defendant subpoenaed applicant’s business and bank records, Mr. Clements invoked the 5th Amendment, reasoning that these documents would incriminate him for taking defendant’s temporary disability payments while working at and collecting profits from his own company.  A source of income is a source of income is a source of income, after all.

Your bright and studious blogger, while attending law school, must have missed the lecture about the constitutionally guaranteed right to both have one’s cake and eat it too.  Apparently, so did the Workers’ Compensation Judge and the WCAB commissioners in the Clements case.

The WCJ gave applicant the choice of his right to keep the records private or his right to pursue workers’ compensation benefits, with enjoyment of one eliminating the other.  When applicant declined to withdraw his application, the WCJ ordered applicant to produce the records, and a petition for removal followed.

The WCAB was not persuaded by applicant’s claim that the WCJ was biased, and went on to explain the distinction between a petition for removal and a petition for disqualification.  Moving on, the underlying issue was then addressed.

Citing a string of California Supreme Court cases, the WCAB held that “applicant herein can not have his cake, by receiving temporary disability benefits, and eat it too, by claiming privilege and denying defendant its equally compelling constitutional right to defend itself by rebutting applicant’s claims.”  (So, defendants do have rights in workers’ compensation law, after all!)

As a parting shot, the WCAB noted that applicant failed to make the necessary allegations to support granting the remedy of removal.  The relevant law of removal and reconsideration is discussed here.

So, if you are faced with a 5th Amendment claim, don’t be disheartened by Redondo Beach – applicant may just 5th Amendment his way out of a workers’ compensation claim.