Category Archives: Tactics and Strategy

Immigration Status Bars Total TD Again!

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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  Recently, a panel rescinded a WCJ’s award of total temporary disability because any sort of employment: regular, modified, or even alternative, was prohibited by the law after the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.”

Another Pro-Medical Provider Network Panel Decision

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California’s Medical Provider Network is regularly the subject of both applicant attorneys’ and lien claimants’ raids.  But, just as walls well guarded do not fall, the MPN still has some stiffness in it left.

The recent panel opinion of Breanna Clifton v. Sears Holding Corporation shows the Workers’ Compensation Appeals Board’s resistance to applicant’s efforts to overwhelm the defense with burden after burden of proof.

Applicant self-procured treatment outside of defendant’s MPN, claiming she was entitled to temporary disability payments and reimbursement for treatment based on the opinion of this out-of-network chiropractor.

Defendant pointed out that the report was inadmissible and the claim for reimbursement barred in accordance with Valdez.  Applicant responded by claiming that defendant had not proven that the MPN was valid.

Defendant filed for reconsideration following the workers’ compensation judge’s award of everything under the sun to applicant.  In an act of moderation, the WCJ declined to order the executives of Sears Company to personally apologize to applicant in the form of a choreographed dance and song routine for daring to invoke a defense.  (Some day…)

Although the defense did not contest the finding of injury, it did object to the admission of the reports and the reimbursement for treatment expenses.

The panel held that “a defendant may satisfy its burden of proving it has a properly established and noticed MPN by asserting that it has an approved MPN and requesting judicial notice of the inclusion of its MPN in the list of approved MPNs on the [Administrative Director’s] Web site, and by offering unrebutted evidence that it provided the required notices.”

Lien claimants have threatened to demand I prove every element and procedural requirement necessary for a valid MPN – now, the AD’s website is all the proof any attorney needs.

But what do you do when the applicant claims the notices were never provided?  Or, perhaps, after X years with his or her employer, the applicant suddenly doesn’t understand English?  The injury, you see, limited the applicant to his or he native tongue.

This can happen, of course, and the deposition will likely tip you off.  But be prepared with affidavits, witnesses, etc. – perhaps even a note in the employment file that applicant also speaks another language, so that the Medical Provider Network administrator can provide notices in English and the other language as well.

In any case, the MPN is a great wall against bad reports and inflated billing – when applicants and lien claimants try to push it down, don’t be afraid to push back!

The MPN is Back! (For Now)

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The post made on Wednesday had some scary implications.  Fortunately, it appears there may be a light at the end of the tunnel, and this time it has a 50-50 chance of not being a train.

In the case of Michael Thomas v. Safeway Stores Inc., the Workers’ Compensation Appeals Board had previously ruled that the self-insured employer must pay for surgery to be performed by a surgeon in Washington, even though there were eleven surgeons in Safeway’s medical provider network which could do the surgery and were close to applicant’s residence in the San Francisco Bay Area.

Panic ensued among the defense community as the California Applicant’s Attorneys Association toasted to the death of the MPN over flutes of champagne.  But it appears that Safeway stood firm and in filing a petition for reconsideration was rewarded with the sight of the WCAB blinking.

Standing firm against the waves is a sensation every workers’ compensation defense attorney wants to feel – staying standing when the wave crashes against you is one rarely felt.

A new order issued granting reconsideration, giving the parties ten days to settle this dispute or to return to the workers’ compensation judge to give the defense a chance to cross-examine the panel qualified medical evaluator and offer rebuttal evidence.  After all, defendant’s due process rights were summarily brushed off thus far.

Defendant’s offer to settle the matter was fairly reasonable:  Safeway would pay for the surgery under the California fee schedule and applicant would pay for travel and lodging.  There is no word yet on whether the applicant, let alone the surgeon in Washington, would agree to these terms.

In short, it appears that sanity might return to the world of workers’ compensation, even if for a short while.  Workers’ compensation lawyers and adjusters can rejoice in that, at least for now.  Despite rockets red glare and bombs bursting in air, the MPN flag is still there!

In what is quickly developing into an MPN trifecta here at WCDefenseCA, drop by on Monday to see another pro-MPN opinion recently released into the wild.

Another Cut at the MPN

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Gather around, dear readers, and let your eloquent and intriguing blogger tell you a story.  Once upon a time, in a realm known as California’s workers’ compensation, defendant employers came together to for the mutual benefit of employers and employees alike, creating the medical provider network system to weed out prescription-happy and over-billing medical care providers.

All was well with the world, but at every turn applicant’s attorneys, to the detriment of their clients, and medical providers, to the detriment of their patients, tried to overthrow the MPN system.  The fate of MPNs dangled precariously and uncertainty filled the air when, to the surprise of all, the Workers’ Compensation Appeals Board issued several en banc opinions in the Valdez case, declaring that applicants must limit their treatment to medical provider network physicians, that the reports of non-MPN physicians were inadmissible, and that insurance companies and self-insured employers were not liable for the non-MPN medical bills.  And joyous celebration erupted in the streets!

Then, of course, the world of workers’ compensation came back to its senses and tossed the rule of law out the window.

The case of Michael Thomas v. Safeway Stores, Inc. is making the rounds and creating quiet a bit of chatter on and off the internet.

Michael Thomas sustained an injury to his shoulder and required surgery.  However, applicant’s treating physician wrote a report in which he claimed that the 11 MPN orthopedic surgeons in the San Francisco Bay Area were not qualified to perform the surgery, and that the only man in the world that could possibly save applicant’s shoulder was a surgeon in Washington who had written several articles on the matter and performed the surgeries with some regularity.  One of the treating physician’s more memorable quotes: “If Mr. Thomas was my family member, [the Washington surgeon] is the only one I would even consider treating a case like Mr. Thomas’s.”

I only wonder where the treating physician would send Mr. Thomas if the treating physician himself had to pay for the surgery – it is so easy to be generous with the money of others, after all.

Applicant petitioned for reconsideration of the Workers’ Compensation Judge’s ruling denying the treatment, arguing  that the “reasonable geographic area,” as contemplated by California Code of Regulations section 9780 can be determined on a case-by-case basis, and in this case should include the 812 mile distance to the Washington surgeon’s office.  The WCAB ruled that  the facts in this case compel a finding that a surgeon in Seattle, Washington is in the reasonable geographic area of San Francisco.  Naturally, defendant must pay for flights, accommodations, and whatever fees may come.

Doesn’t this case mean that all you need to beat an MPN is to have a treating physician say none of the locals are qualified?  Hopefully, this will be an isolated lapse in judgment rather than a new policy.

Post Termination Psyche Claims Barred? Not in My Workers’ Comp…

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Your loyal blogger seems regularly at odds with panel decisions on the meaning of Labor Code section 5412, specifically as to the term “in the exercise of reasonable diligence should have known.”

In your blogger’s simple and straightforward world, the statute means what it says.  So, for example, if you pick up a box at work, feel a sharp pain in your back, and then your back hurts from that point on, the exercise of reasonable diligence quickly helps you connect the dots – one does not need a rocket scientist, a brain surgeon, or even a chiropractor to conclude that the disability flowing from that instance is industrial.  But enough of Grinberg’s world, back to the world of California Workers’ Compensation.

In the case of Bertha Chan v. Carl Karcher Enterprises, the panel came down in favor of the applicant.

Applicant was allegedly enduring a campaign of physical and verbal sexual harassment by her immediate supervisor, when her employment was terminated in December 2007.  Applicant then filed an application one month later, alleging psychiatric injury as a result of the alleged harassment.
The treating physician and the Panel Qualified Medical Evaluator both found industrially caused injury. But what about Labor Code section 3208.3(e)?

A cumulative trauma can’t be sudden;
There was no notice to the employer of the injury;
There was no medical record of the impairment prior to the claim;
The trier of fact specifically found there was no sexual harassment; and
The exercise of reasonable diligence would have lead applicant to conclude that whatever impairment she had sustained was industrial.

After all, either applicant had sustained an impairment or she hadn’t – if she had, it happened at work before being fired; if she had not had any impairment by the time her employment was terminated, then something other than work caused it.
Assuming she had sustained some psyche injury prior to the termination of employment, then how could physical and verbal sexual harassment on an ongoing basis not be linked to the impairment?

Your garden variety defense attorney is thus forced to watch logic prove a blunt tool in situations such as these. It is worth noting that the defense attorney in this case, in the filed answer, acknowledged that there was no evidence presented at trial of the concurrence of applicant’s disability and knowledge of the industrial causation of the injury.  But actual knowledge isn’t the standard; the standard is known or should have known.  The defense has petitioned for reconsideration.  I hope you will join me in waiting to see if, perhaps, some new life could be breathed into this defense.

Psyche Claims: Divide and Conquer

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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.

Cumulative Trauma Claims and the Fired Employee

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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.

Permanent Total Disability for Non-Industrial Causes

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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.

Good Faith Personnel Action Causes Psyche Injury

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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.

5th Amendment Cake and Workers’ Comp Desserts

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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.