Category Archives: Tactics and Strategy

132a Claim Fails Because Employee Was Being a Jerk

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The end of a business relationship can be a nasty event – and when all the stops are pulled, accusations of discrimination often fly if there is even a hint of a workers’ comp claim in the air.

Labor Code section 132a, which governs claims of industrial-injury-based discrimination, is often invoked when the following sequence of events occurs:

1)      Employee is employed;

2)      Employee sustains an industrial injury;

3)      Employee is no longer employed.

Where’s the discrimination?  It’s not always there.  In the event of a completely baseless 132a claim, the employer can recoup the time and expense wasted defending the frivolous action by filing a malicious prosecution claim in civil court.

Often enough, the story is one of a bitter employee fired for reasons unrelated to any injury, as was the case in John Piechota v. SEI Information Technology (a November, 2011 panel decision recently denied review by the Court of Appeal).

Applicant was employed as an information technology consultant and, while flying on business, sustained injury to his left knee roughly a month after being hired.  He saw a doctor for this injury but the doctor prescribed no work restrictions.  A month later, while on a connecting flight (employer apparently refused to authorize a direct flight or private corporate jet) applicant re-injured his left knee and this time got work restrictions prohibiting travel for three weeks.

Applicant, at the time, was holding on to a $2,400 laptop for his employer which the employer had paid for.  When his employer asked for the laptop back, he refused, reasoning that he had e-mailed all pertinent information to a co-worker, so the employer didn’t really “need” the laptop.

After several rebuffed attempts to get the laptop back, including offering to go to applicant’s house to pick it up, the employer decided it was time to let Mr. Piechota go on to do great things.  Applicant refused to let anyone come to his house because he was too disabled to come to the door, even though he was already conducting a job search the next day.

The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board both found applicant to be less than credible – applicant had claimed that he was forced to pay for the laptop computer and his flights, although the documented evidence appeared to favor deeper pockets than his in that regard; there was a reason the employer wanted its laptop back as they had paid for it!

The judicial powers also found that the evidence was very clearly in favor of the defense: applicant had been fired because he refused to return the company’s property.  Of particular assistance to the defense in this case was the fact that the discussion of applicant’s uncooperative demeanor was the subject of an e-mail discussion amongst management, and the decision was clearly taken to terminate his employment if he didn’t return the laptop.

Perhaps it’s time to consider a malicious prosecution action?

The Incredible Hulk? Not so much…

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Do you think the Incredible Hulk had a compensable workers’ compensation claim?  I mean, after all, he was injured in a lab while working with gamma rays and developed noticeable impairment, primarily psychological, which resulted in him being precluded from most available jobs.  After all, the things that would turn Dr. Bruce Banner into the smashing angry beast are the types of things we encounter every day in the Workers’ Compensation world.

Nothing so interesting happened with the applicant in the case of Betty Popoff v. Labcorp.  If Ms. Popoff developed any super powers after her alleged injury, they are likely limited to recovery in the workers’ compensation system after years of treatment on a non-industrial basis.

Applicant was employed by Labcorp and claimed a cumulative trauma injury from July 2009 to July 2010, manifesting mostly as numbness in her hands (bilateral carpal tunnel syndrome).  The workers’ compensation Judge found the injury compensable, and the defense petitioned the Workers’ Compensation Appeals Board for reconsideration.

In denying the defendant’s petition, the WCAB took the position that defendant was making two, mutually exclusive arguments.  The first was the statute of limitations – that the applicant should have known that her injury was industrially caused when she went to see a physician on a non-industrial basis in 2004 for numbness in her hands.  The second was that the injury was not industrially caused.

But in all fairness to the defense, what about the other side of the coin?  If it was industrially caused, then applicant had six years to discover its causation.  Furthermore, after six years of treatment for numbness in hands, no physician had ever explored the possibility that the numbness was industrially caused.  Yet, somehow, the applicant decides, after six years, that the injury must be industrially caused and files an application.

Nor did the applicant tell the employer about the numbness she experienced in her hands, information that could have helped prevent any permanent disability by adjusting her duties in 2004.  After all, the standard is “known or should have known.”

Just thinking about this approach makes your otherwise calm and articulate blogger WANT TO MAKE SMASH!

Is “Developing the Record” Back?

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Some of my dear, loyal readers will recall their humble blogger’s post on “developing the record” and the apparent signal that the Workers’ Compensation Appeals Board was growing weary of applicants getting second and third bites at the apple when they found themselves repeatedly bringing knives to a gun fight.  It looks like knives may be back in style.

In a recent panel decision, Jose Luis Tejeda-Garcia v. Modern Group (Company)/Dragon Products, the workers’ compensation Judge gave an order to develop the record, which the WCAB declined to disturb.

Applicant claimed to have sustained injury to his lungs, vocal cords, and associated squamous cell carcinoma while working for defendant as a welder.  Defendant took the position that the injury was non-industrial because of applicant’s history of smoking and alcohol use.

The parties brought their dispute to a panel Qualified Medical Evaluator in the specialty of otolaryngology, who suggested that they go to an epidemiologist or oncologist.  For some reason, the otolaryngology PQME did not find that the other PQME, the internal medicine specialist/oncologist, was qualified to issue an opinion on the questions of causation and apportionment in this case.

The WCJ found the record to be insufficient, reasoning that neither PQME addressed the issue of industrial aggravation.  She specifically rejected defendant’s contention that she was acting “as an advocate for the injured worker.”

Your humble blogger will chime in with his own thoughts at this point.  It is not clear who filed the declaration of readiness to proceed, but in either case, the parties conferred at the Mandatory Settlement Conference and elected to proceed to trial.  Somehow, applicant must have thought that he could proceed to trial and win – otherwise he could have just told the WCJ at the MSC – we need to develop the record, further discovery is necessary.

But that didn’t happen.

Applicant proceeded to bite at the apple, and the defense was ready and prepared to litigate the case at trial.

What should have happened was one of the following: either the WCJ should have ruled that there was insufficient evidence from which to draw the conclusion that applicant had carried his burden of proving industrial injury, including causation, or the WCJ should have ruled that the burden had been carried, and let the defense challenge the ruling on appeal.

The WCAB should have found the same – that applicant decided to roll the dice and that the trial results should have stuck, one way or another.

Unfortunately, the WCAB did not take action on this one.  Oddly enough, the WCAB specifically stated that “defendant’s petition should be denied because it does not demonstrate significant prejudice or irreparable harm.”  But significant prejudice was demonstrated in the panel decisions of Bates and Elias.

It’s decisions like these that make your perceptive blogger skeptical when he hears of the need for “judicial economy.”  The WCAB could save the workers’ compensation system from having to have two trials and two appeals for every case by telling the applicants that they only get one shot (just like everyone else in the world).  Instead, by allowing applicants to “develop the record” after a trial, the WCAB commissioners are inviting more clogs in an over-clogged system.  Your humble blogger does not approve.

In any case, folks, keep your eyes open, because the WCAB might just be inclined to let the “develop the record” insanity continue.

MPN Defects Can Be Cured; Lien Problem, Not So Much…

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Can a defect in a Medical Provider Network be cured?  The answer appears to be “yes” according to at least one workers’ compensation Judge and the Workers’ Compensation Appeals Board in the case of Sara Ochoa v. Bel Aire Window Coverings.

Lien claimant Aspen Medical Resources petitioned the Workers’ Compensation Appeals Board for reconsideration of the workers’ compensation Judge’s order dismissing its lien.  The WCJ held that lien claimant had “failed to meet their burden of proof that their charges were credible or reasonable,” and that “defendant had a valid Medical Provider Network in place at the time of lien claimant’s date of services.”

Lien claimant argued that the Medical Provider Network was defective, but didn’t provide any reasoning.  In any case, applicant was referred to a chiropractor shortly after her injury, but notices of the MPN were not sent to her or her treating chiropractor until after she began treatment.

So the only possible theory lien claimant could go on to challenge the validity of the Medical Provider Network is that the notices of the MPN were not provided at the time of injury.  Swing and a miss.  As the WCAB put it, “a delay in serving the injured worker with required MPN notice does not mean that a defendant is liable forever after for the costs of any and all treatment self-procured by the injured worker.”

The WCJ also held that the “durable equipment” of a hot/cold therapy unit would only be “reasonably necessary” if applicant had undergone surgery, which she had not.  The instructions for use of the equipment specifically stated its purpose was to help post-surgery recovery.

Now, another twist to this case was lien-claimant’s objection, made at trial, that  defendant did not provide a proof of service of its trial exhibits.  The WCJ held that the “objection amounted to surprise and an attempt to catch the opposing side off guard” and that “[l]ien claimant had more than enough time to review the exhibits prior to the trial.”

It certainly looks like the old tricks of lien claimants are starting to resemble duck suits during hunting season.

Compensability Presumption Defeated by Lying Applicant

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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!

Stipulations: A Crutch You Can Lien On

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Imagine this scenario: you enter into a stipulation to resolve a lien with a lien claimant’s hearing representative.  The stipulations are signed and approved by the workers’ compensation Judge.  When the lien claimant hears about the stipulation terms, it wants out of the agreement, claiming the hearing rep. exceeded the authority granted to settle.  Well, one WCJ issued an order rescinding the stipulation and releasing the lien claimant from its binding effect.

In the case of Ronald Houghton v. All Brands Sewing and Vacuum, defendant and lien claimant Express Case Management entered into a stipulation to settle the lien of $14,639 for $1,411.  The lien claimant then filed a petition for reconsideration arguing that “its hearing representative mistakenly took defendant’s offer, thinking it was appropriate.”  Even though the defendant was not served with the petition, the WCJ rescinded the earlier order, setting the lien claimant free.

The defense, upon receipt of the order (22 days after it was issued) filed a petition for reconsideration.  After addressing the issue of timeliness, and finding that defendant’s petition was timely, the Workers’ Compensation Appeals Board rescinded the WCJ’s order, reinstating the original stipulations.

A law professor once told me that the governing motivation for almost any judge or panel of judges is “judicial economy.”  The reasoning in this panel opinion shows that to be true.  The WCAB cited Robinson v. Workers’ Comp. Appeals Bd., in that the purpose of stipulations is to expedite trials and hearings, and that “if a party had the right to withdraw from a stipulation, ‘hearings would be subject to uncertainty and disruption in order for the parties to gather and present evidence on issues thought to have been laid to rest by the stipulation.”

In other words, if a hearing representative exceeds his authority, perhaps you should retain a different hearing representative.  It’s not the defendant’s problem, and it certainly isn’t the WCAB’s problem.

Rebuttal Evidence Must Be Disclosed

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Shouldn’t there be some distinction between evidence offered to prove an affirmative fact or element and evidence offered in rebuttal?  Not according to the army of judges in the case of Ace American Insurance Company v. Workers’ Compensation Appeals Board (writ denied).

Applicant Emil Sulek had claimed that his shoulder injury precluded various physical activities, but the defense attorney found a witness who was prepared to testify that he had seen Mr. Sulek exceeding his claimed limitations.

When the parties appeared at a status conference, the hearing was turned into an Mandatory Settlement Conference, they filled out a 5-pager, and set the matter for trial.  The defense attorney did not list this rebuttal witness, and had not previously turned over the statements of that witness to the applicant’s attorney.

At trial, after applicant testified, the defense sought to have the rebuttal witness testify as well, but this effort was thwarted by the workers’ compensation Judge, who described this as “ambushing applicant at the hearing.”

Defendant petitioned for reconsideration, but received no sympathy from the Workers’ Compensation Appeals Board.  Instead, an opinion detailing Labor Code section 5502(e)(3) was offered.

The Court of Appeal did not ride to the rescue either, declining defendant’s petition for a writ of review.

It appears that the workers’ compensation system is adverse to applicants being caught red-handed when they have testified to half-truths and full lies.

The WCJ described this as ambush, and in some senses it is – if you want to catch criminals in a sting operation, you have to lay out the bait and strike during the act.  In workers’ compensation, there is no effective way to do this if the defense must lay its rebuttal cards out on the table.  Many WCJs don’t want to see surveillance or sub rosa tapes either.

Well, it appears that it, once again, falls to your humble blogger to set the record straight on a few facts.  If you are for some reason under the age of 12, please stop reading at this point.

1)      There is no Easter Bunny;

2)      There is no Santa Clause;

3)      FROM TIME TO TIME, APPLICANTS LIE!

And when applicants lie, they lie to get more money, more time off work, and more drugs.  The only thing that keeps the applicants that are inclined to lie from lying, is the risk of getting caught, losing their claim and incurring some sort of penalties (usually criminal).  The liars will never stick their necks out and testify in open court if they know that rebuttal evidence is coming.

An Evaluator Turning Down the Almaraz/Guzman Dance

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This blog has covered some tactics that good defense lawyers can use to push back against the impairment inflation of Almaraz/Guzman. Sometimes, we even see A/G used to actually cut down the total impairment.  In the recent case of Malhotra v. State of California, Department of Developmental Services, the panel Qualified Medical Evaluator was not inclined to jump on the A/G bandwagon… and the Workers’ Compensation Judge would have none of it.

Applicant sustained an injury consisting of a laceration to the small finger of his hand, resulting in decreased range of motion and loss of sensation.  The panel QME found this to reflect a 2% whole person impairment.   The applicant’s attorney tried, unsuccessfully, to play the A/G tune for the PQME and get him to rate grip loss with or instead of the decreased ROM and loss of sensation.

But he wouldn’t budge – the PQME in this case manifested some strange and completely irrationally dedication to the truth and the honest evaluation of applicants.  The AMA Guides clearly state that, in the presence of reduced range of motion, grip loss cannot be rated.

In crafting the instructions to the DEU rater, the WCJ noted that the PQME “does not appear to be aware of the latitude he has,” and proceeded to instruct the DEU to rate grip loss.  The result, of course, was a 20% permanent disability rating.  On cross-examination, the DEU rater testified that he would not have rated grip loss, but would have instead rated applicant with 1% permanent disability, but the Judge’s instructions are the Judge’s instructions.

After the WCJ awarded applicant 20% permanent disability, defendant promptly and zealously petitioned the Workers’ Compensation Appeals Board for reconsideration.  On what possible grounds could an objection to the course of events be made?  Well, in the en banc case of Blackledge v. Bank of America (2010), the WCAB held that the physicians assess the injured employee’s whole person impairment, and the WCJ frames rating instructions.

According to the WCAB, the WCJ, in this case, was “again usurping the role of the physician in determining that applicant’s impairment should be based upon grip loss, rather than the factors he identified that comport with the AMA Guides.”   (To my dear WCJs out there, please recall, your humble blogger but reports these opinions, he does not draft them.  If he were free to draft binding opinions, there probably would be considerable cause to be very angry with what he had to say…)

The end result was a victory for the defense and for anyone interested in having a workers’ compensation system build on consistency and predictability – a scratch on your pinky does not render you only 4/5th of the worker you were.

When the PQME Goes Ex Parte, Who Gets to Order a New Panel?

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WCDefenseCA does not often agree with panel opinions which hand victory to an applicant at a defendant’s expense.  Grudgingly, however, your humble blogger is forced to agree with the panel decision in Darlene Berke v. Bloomingdales.

We all remember how Alvarez threw the workers’ compensation world, applicants’ attorneys and defense lawyers alike, upside down, keeping us guessing as to how trivial or administrative a communication could incur the punishment of an ex-parte sanction.  Subsequent decisions have since clarified this issue, but only a little.

Well, the Berke case did not reach that point.  Instead, it addressed the issue of who holds the right to demand a new panel under Labor Code section 4062.3(f).  Basically, the panel Qualified Medical Evaluator called the defendant’s office demanding payment of a deposition fee two weeks in advance of the deposition, complaining of a history of insurance companies not paying him.

The defense moved to have the panel stricken for ex parte communication – the PQME contacted them in an inappropriate manner (not in writing and not copied to both sides).  The workers’ compensation Judge and the Workers’ Compensation Appeals Board both ruled that the party not involved in the ex parte communication holds the right to request a new panel.

This makes sense, after all – imagine if any time the applicant was unhappy with the panel QME, he need only pick up the phone and talk about the weather for 10 minutes before he could demand a new panel.

However, that being said, if your ever-ambitious and power-hungry blogger should ever get his hands on a black robe and gavel, he could be persuaded that defendant’s position is the correct one under a particular theory.

What is this brilliant theory that your sharp-witted blogger hatched to bring glory to the defense community?  I’m so glad you asked!

In Berke, it was the PQME who initiated the contact and engaged in ex parte communication with a party.  In such a case, it is fair to assume that the PQME, either through ignorance of the law or through reckless disregard of it, has a habit or propensity of engaging in such behavior.  Therefore, if the defense knows that the PQME has engaged in ex parte communication with it, the defense can safely assume that the PQME has or will engage in ex parte communication with the applicant’s attorney.  Sometimes, such communications may go unreported by the other side.

Also, ex parte communication should come with a sanction of some sort.  In cases such as these, the parties are blameless, but the PQME is in the wrong.  Perhaps a loss of fees and probationary QME status is an appropriate punishment.

 

When Falcons Come Home to Roost – More NFL Drama

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California is home to an impressive array of professional sports teams.  The list goes on and on of the phalanx formed by the Golden State.  Look on our works, ye Mighty, and despair!  And know this – regardless of what happens on the field, the doom of your team shall be had in our workers’ compensation courts!

Previously, your diligent blogger had occasion to cover that point in space where professional sports and California workers’ compensation intersect.  Naturally – there’s no resolution yet as to how to avoid having California squeeze employers for the alleged injuries of their California-visiting employees.

It appears, however, that the Atlanta Falcons are not going to wait for California to develop her self-restraint:  moving with the National Football League, the Falcons are suing former players to force them to litigate workers’ compensation cases in Georgia rather than in California.

An arbitrator in Georgia, much like an arbitrator in Kansas, held that the players must abandon their California cases and pursue the cases in their employer’s state.  The Falcons and the NFL are suing to get a federal judge to order the players to abide by the arbitration ruling.  The arm of the federal government has grown long indeed if it can reach from Georgia to California.

I guess we’ll have to wait and see what happens – but this may set precedent for non-professional sports cases as well.  Perhaps employment contracts can include clauses requiring workers’ compensation claims to be brought in the employer’s state, and then injuries sustained at conferences and training seminars can be dealt with appropriately.

When WCDefenseCA knows more… so will you.