WCDefenseCA

Apparently, the Home Depot can be a stressful place to work.  William Wong worked at Home Depot as an assistant store manager, but was fired shortly after sending his supervisor a letter by facsimile indicating that he intended to file a workers’ compensation psyche claim.  (William Wong v. The Home Depot)

Then, it was all quiet on the comp front for more than seven years, after which applicant resurfaced to file an application for his psyche injury.

Naturally, the defense invoked the statute of limitations and lawful good-faith personnel action under Labor Code section 3708 defenses.  The workers’ compensation Judge ruled that applicant had documented that the employer had notice of the claimed injury, but he had not been provided with a claim form, and the injury had not been denied within 90 days, so it was presumed compensable under Labor Code section 5402.

If anyone other than applicant’s evaluating physician asked what applicant had been up to in those seven years between the “injury” and the filing of the application, applicant could have told them about his arrest for possession of a controlled substance and resisting arrest.  But that information wasn’t given to the evaluating physician.  He also told the evaluating physician that there was no history of psychosis in the family, even though his uncle had committed suicide.

Needless to say, the workers’ compensation Judge was not impressed.

Although the WCJ held that the presumption of compensability under Labor Code 5402 applied, that presumption was rebutted because applicant proved to be an unreliable historian, meaning that the medical reports based on his statements were not substantial evidence.

Also, the WCJ reasoned, the history of criminal activity and drug use could have been causative factors in his psychotic break.   In other words, as your humble blogger likes to say, No Soup For You!

Bear in mind, my dear readers, the defense in this case got very lucky.  Applicant had a bad history, and lied to the evaluating physician.  If applicant had not lied about his arrest history and the psychosis history of his family, he would have probably recovered and only suffered a bit of apportionment.  In any case, let this be a lesson to us all – hand out claim forms early and often!

The California Court of Appeal denied applicant’s petition for a writ of review in the recent case of Kandi Sanders  v. Workers’ Compensation Appeals Board (California State University).  The main issue in question is whether Almaraz/Guzman requires an evaluating physician to stay within the “four corners” of the AMA Guides for a psyche injury.

In a report, dated June 27, 2011, the agreed medical evaluator wrote “[u]ntil such time as (psychiatric impairment) is clarified legally, it is my intention to continue to describe an impairment by the GAF, by the overall impairment in Chapter 14 of the AMA Guides, as well as the 1997 PDRS ratings.”  The permanent and stationary date was in 2011.

The matter proceeded to trial at which time the workers’ compensation Judge awarded applicant 9% permanent disability.  Applicant contested this award, arguing that the PD rating corresponding to her GAF was incorrect, and that the work functions factors of the 1997 schedule are a better indication of her permanent disability.

So what did the WCAB find?  Is the 1997 schedule within the four corners of the AMA Guides if tucked into the flap of the back cover?  Not so much.

The WCJ, in his report, reasoned that applicant has stipulated to the 9% rating and was so bound by her stipulation.  Secondly, the A/G decision limited the rule-bending and impairment-finagling to the four corners, which does not include the work function factors in the 1997 schedule.  The WCAB adopted and incorporated the WCJ’s report and recommendation, denying applicant’s petition for reconsideration, and the Court of Appeal followed suit, rejecting applicant’s contention that the 2005 schedule for converting psyche injuries to permanent disability ratings is inadequate.

Perhaps equating a psyche injury to a shoulder impairment would yield better results?