WCDefenseCA

*** 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.

A recent split-panel decision served to caution workers’ compensation Judges against looking for facts outside of their hearing rooms.  Check underneath the chairs, look between the cushion seats, and, if necessary, place a “lost and found” box on your desk, but confine your search for the facts to the four walls of your hearing room.

In the case of Alfonso Ponce De Leon v. Barrett Business Services, the workers’ compensation Judge elected to do some investigating, calling several physicians in defendant’s medical provider network to determine if applicant’s claims as to their availability (or lack thereof) were true.  If this sounds familiar, it may be because you read a post, sometime ago, about a WCJ who did an internet search to get the background of a defense witness.

Basically, applicant claimed that defendant’s MPN did not provide any orthopedic surgeons, within a reasonable geographic area, willing to take workers’ compensation patients.  Applicant (and applicant’s attorney) would like nothing better than to free of defendant’s MPN and pick a treating physician with the appropriate outlook and sensitivity to applicant’s “position.”

To determine if the allegation of a hollow MPN was true, the WCJ did not instruct the defendant to obtain written declarations from each physician’s office listed or request that applicant’s attorney personally speak to each doctor’s staff to determine availability.  Instead, the WCJ took a list of six doctors listed in defendant’s MPN with the appropriate specialty and geography, and picked up a phone.

Two doctors he did not call at all, one did not answer, one declined to take any workers’ compensation patients, and the remaining two offered to do an initial evaluation and establish a treatment plan.  From this, the WCJ concluded that applicant was free to go outside of the MPN “based on the failure of the doctors within the MPN to accept the applicant for treatment.”

The panel did not take kindly to judicial investigation.  Let’s just say that, in the panel opinion, the Judicial Code of Ethics was mentioned.  Nor was the two-commissioner majority persuaded that the fruit of the WCJ’s poisonous tree justified the findings of fact.  Your blogger’s favorite quote?  “Additionally, failing to reach a physician’s office with a single telephone call does not establish the unavailability of the physician.”

The dissent pointed out that the defendant had not raised the issue of the WCJ’s phone calls in its petition for reconsideration.  Also, the dissent interpreted the WCJ’s investigation as merely assisting the applicant in finding a treating physician.

If these were the WCJ’s intentions, circumventing the present conflict by bolstering applicant’s phone inquiries with the booming voice of the Board, then perhaps the action was noble… but no less inappropriate.  If the WCJ did not find applicant credible with respect to his claims, or found his claims unsupported, then such a finding should have been reflected in the conclusion of the proceeding.  But the WCJ did not take applicant at his word.

Defendant’s petition for reconsideration was granted.

Apparently, they’re not handing out Order Granting Applicant’s Petition to Reopen, (or Ogapr, as your sentimental blogger’s great-grandma used to say) at some of the Board venues anymore.

In the case of Seb Baghoomian v. Workers’ Compensation Appeals Board (writ denied), applicant filed a Petition to Reopen for New and Further Disability and the workers’ compensation Judge, the WCAB, and the Court of Appeal were all having none of it.

Applicant was employed as a foreman in 2003 when he was attacked by four thugs while filling up gas on a work-related trip between Pasadena and San Francisco.  He was unconscious for five minutes during the attack but eventually returned to work for about two months before he quit.

Applicant sought treatment for neck pain and left-sided numbness and weakness, also filing a claim for injury to the back, head, and psyche.  The claim was settled by way of stipulation in December of 2007.

In July of 2011, applicant filed his petition.  The matter went to trial but the WCJ denied applicant’s petition, reasoning that applicant had failed to carry his burden of proof as set out in Labor Code section 3202.5.

At trial, applicant presented several PR-2 reports from his primary treating physician, but offered no narrative reports or reports of any kind from the treating physician to actually support the theory that he had sustained new and further disability.   The WCJ also rejected applicant’s efforts to allow him to develop the record, citing the Elias case mentioned on this blog some time ago.

Perhaps the burden of proof still falls on the applicant now and then, which is not something this cynical blogger can object to with any conviction.

A recent writ denied case had the unfortunate effect of rebutting the AMA guides to inflate applicant’s permanent disability from an unadjusted whole person impairment of 5% to an unadjusted WPI of 19%.

In the case of Riverford Apartments v. Workers’ Compensation Appeals Board (Jose Oliviera), applicant maintenance worker claimed a June 8, 2007 injury to his left shoulder.  The injury was accepted and the parties ended up with a Panel Qualified Medical Evaluator.

The PQME relied on Almaraz/Guzman II and applied the hernia chapter to rate applicant’s left shoulder injury.  The hernia impairments, reasoned the PQME, better reflect applicant’s work restrictions than the shoulder chapter.

I take this opportunity to direct your attention to the following side note.  I don’t know what arguments were made at trial or through the appeals process, but Almaraz/Guzman II is outdated.  Guzman III is the most recent decision on this point (and the final decision, at least for now).

The language in Almaraz/Guzman III calls for a specific description by the evaluating physician as to what makes this case complex or extraordinary.  In the absence of such a record, the AMA Guides are to be applied as written.  [For more on this topic, please review my earlier posts part i and part ii]

With that, back to the story…  The Workers’ Compensation Judge relied on Almaraz/Guzman II, and thereby adopted the PQME’s opinions to give a final award of 39% permanent disability.

Picture this – a case that begins as a typical shoulder injury with a 5% ratable impairment gets inflated into 39% permanent disability award.

The Workers’ Compensation Appeals Board granted reconsideration, only to adopt and incorporate the WCJ’s opinion.  The Court of Appeal denied defendant’s petition for a writ of review.

From my reading of this case, it appears the PQME (and, by extension, the WCJ) have a problem with the AMA Guides as written.   There is no indication this case had anything about it that was unusual or never contemplated by the authors of the Guides.  The PQME thought the [higher rating] charts under the hernia section better described the work restrictions, rather than the shoulder chapter’s description of range of motion, etc.

This case should have gone the other way.  In fact, with the close of discovery, the PQME should not have been given a chance to develop the record as to why he felt the AMA guides were rebutted.  The Guides should have remained whole and applicant should have been adjusting his 5% WPI.

Instead, well, we wake up to find ourselves in California’s Workers’ Compensation system, as opposed to Greg Grinberg’s (oddly work-related) fantasy land.

Applicant, a psychiatric nurse, filed a psyche claim after repeatedly being told by a supervisor (a psychiatric technician) to administer a drug at a more frequent rate than that prescribed by the treating physician.  The disagreement had to do with the meaning of “24 hour period.”  The technician incorrectly believed that a 24-hour period ran from midnight to midnight, rather than an actual 24 hour cycle beginning with the first administration of a drug.

The Workers’ Compensation Judge interpreted applicant’s claim as hurt feelings based on resentment at being under the supervision of a technician, and found applicant had suffered no actual injury.  Applicant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board denied applicant’s petition, adopting the WCJ’s opinion and concluding that defendant’s conduct was a lawful, good-faith personnel action and regarded applicant’s claim as a means of confronting the defendant hospital over the issue of its chain of command.

The Court of Appeals took a different approach to this matter.  In its opinion, the Court annulled the decision of the WCAB and remanded the case to determine if the action of defendant, through its supervising technician, was, indeed, lawful.

Labor Code § 3208.3 governs psyche claims, and subsection (h) provides a defense against those psychiatric injuries substantially caused by “a lawful, nondiscriminatory, good faith personnel action.”

At least in this case, the good faith personnel action defense to a psyche claim turns on the meaning of the word “lawful.”  The psyche technician’s interpretation of “24 hours” seems at odds with the definition used in the practice of medicine, and likely the common sense meaning of the term (imagine a patient, in following the prescription of 1 pill every 24 hours, taking one pill ten minutes before midnight and another twenty minutes later.).

That being said, does such a mistake and deviation from generally accepted practice somehow make the supervisor’s actions anything other than lawful?  At most, this seems like an act of negligence.

Hopefully, lawful and correct will remain two distinct terms and the good-faith personnel defense will be one less chip worse for the wear.  Let’s all keep our eyes open for how this case turns out.

Are you tired of locking down evidence at the Mandatory Settlement Conference, proving your case at trial, and then being told to start over again by “developing the record?”

Again and again, California Workers’ Compensation defense attorneys witness judges helping applicants take a second or third shot at the target, often being told specifically what evidence needs to be added to the second trial to justify an award (or a bigger award).

Two recent Workers’ Compensation Appeals Board panel decisions seem to be starting the trend away from this practice.

In the cases of Bates v. Valley Vintners Wine Company (2011) and Elias v. Saticoy Lemon Association (2011) [Full disclosure: the former case was handled masterfully by Thomas J. Harbinson and Laura K. Lachman] the panel put a stop to this “develop the record” trend.

In Bates, after the MSC and trial, the Workers’ Compensation Judge disregarded defendant’s references to apportionment evidence and the rater’s use of an incorrect occupational group number for the applicant, finding him permanently and totally disabled based solely upon the Le Boeuf expert’s independent opinion without backup support.

Following defendant’s petition for reconsideration, the WCJ rescinded the Findings and Award, and instructed the parties to appear for further trial proceedings to “develop the record” to allow additional testimony from applicant’s vocational rehabilitation expert on the issues of “vocational feasibility, labor market survey, and/or necessity for vocational testing.”  Defendant responded by filing a petition for removal.

Citing Labor Code § 5502(e)(3), the WCAB held that discovery closes at the MSC.  Furthermore, once “the record is supported by substantial evidence from which a decision can properly be made, there is no basis to order development of the record.”  (Citing San Bernardino Community Hosp. v. Workers’ Comp. Appeals Bd.)

Similarly, in Elias, the WCJ vacated the submission of evidence and ordered development of the record on the issue of causation, also demanding the production of an additional opinion from the treating physician.

Defendant petitioned for reconsideration (which the WCAB held was improper, and instead ordered removal).  The WCAB again held that, absent a “showing that there was evidence applicant could not have discovered or obtained in the exercise of due diligence prior to the MSC,” Labor Code § 5502(e)(3) [the statute is erroneously cited as (d)(3) in the opinion] prohibits the admission of new evidence.

My favorite quote from the Elias opinion?  “In ordering parties to obtain [additional evidence] the WCJ is, in effect, doing applicant’s attorney’s job.”

Both WCJs were instructed to issue a decision on the present record.