WCDefenseCA

Often enough, lien claimants will wage a war of attrition against defendants, hoping that the looming cost of litigation will soften the resolve of defendants in terms of paying undeserving liens.  I have had lien claimants tell me that their settlement demand is cheaper than me “coming down to the Board to litigate” the claim – I’m sure most of us have.  The recent decision in the case of Alfonso Alcaraz v. Hronis, Inc., presents such a situation, and the Workers’ Compensation Appeals Board sanctioned two lien claimants for such behavior.  (My earlier readers may recall a discussion, many blog posts ago, that advocated using sanctions to restrain the greedy little appetites of lien claimants.)

The underlying case was settled by compromise and release, and defendant agreed to pay, adjust, or litigate all liens of record.  The matter of two lien claimants, K. Rad Payman, M.D., and Silver Orthopedic Center, proceeded to trial.  Following the May 3 lien trial, the Workers Compensation Judge issued a Findings of Fact, Orders & Award on June 7.  Defendant filed a Petition for Reconsideration on July 1, and on July 14 the WCJ rescinded his Findings of Fact, Orders & Award, and set the matter for an additional hearing.  So here is where it gets weird…

On July 15, both lien claimants filed a petition for reconsideration, seeking relief from the WCJ’s original, and already rescinded, Findings.

The WCAB ordered the petitions dismissed as moot, but then continued in their opinion to note that the petitions would be dismissed in any case, because they were skeletal and untimely.  (Remember, petition for reconsideration must be filed and received by the Board within twenty days of the issuance of the underlying decision, plus five for mailing if the decision was served by mail.)

The petitions themselves were the very definition of skeletal – claiming new information was found without describing said information or how it would affect the case.  Employing the tactic of Scheherazade, the lien claimants hoped to fill the commissioners with an unyielding curiosity.  Needless to say, the Board was not amused.

On its own motion, the Board sanctioned both lien claimants for their petitions, which were “without merit and done solely for the purpose of causing unnecessary delay or a needless increase in the cost of litigation and are not justifiable.”

Realistically speaking, the sanctions imposed are not going to do much to deter such behavior.  $250 is a cost of doing business, not a “scared straight” event.  On the other hand, sanctions like these are a great thing for another reason – they build up a record that can be used in the future, like in the case of a certain hearing representative.

Aladdin would be proud…

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.

In California Workers’ Compensation defense practice, the Statute of Limitations defense is always in the back of the practitioner’s mind.

Labor Code § 5405 limits “[t]he period within which proceedings may be commenced” to one year from (a) the date of injury; (b) payment of benefits; or (c) provision of medical treatment.

A recent Writ Denied case (Barragan v. WCAB) defines the meaning of commencement of proceedings and puts some fresh teeth into the jaws of that old SoL dog.

Applicant claimed an injury to his back and neck occurred in October of 2006.  Defendant provided some medical treatment, but denied the claim in January of 2007.

Defendant took applicant’s deposition in March of 2008.

Applicant claims to have filed an Application for Adjudication of Claim on July 3, 2007, but no record of this was in the Board file, served on defendant, nor added as an exhibit at the Mandatory Settlement Conference.  Nor was this 2007 application marked for identification at trial.

The Court of Appeals declined to review the WCAB decision that a deposition does not institute proceedings.  Only an Application for Adjudication of Claim can satisfy the requirements of Labor Code § 5405.

In other words, an applicant must file an Application for Adjudication of Claim within one year of the latest of parts (a), (b) or (c) above.

A deposition does not commence proceedings, nor a request for documents, nor a letter to applicant’s attorney, nor a get-well-soon card signed by every one of the applicant’s co-workers.

I like this case for yet another reason – the applicant did not put on all the evidence he could have, namely the allegedly date-stamped application that would have defeated the Statute of Limitations defense.

But the Workers’ Compensation Appeals Board did not send the case back to the Workers’ Compensation Judge to “develop the record” and allow applicant another swing at the ball.

The MSC came and went, discovery opened and closed, and that, as they say, was that.

In other words, the Statute of Limitations defense appears to have some teeth yet.  And to illustrate this point further, here is a short video on the Statute of Limitations defense.