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.

More and more, the horseplay defense appears to be no defense at all.  In the case of Robert Baeza v. Federal Express, the Workers’ Compensation Appeals Board denied defendant’s petition for reconsideration of the workers’ compensation Judge’s finding that the defense did not apply.

Applicant was collecting paperwork when a co-worker came into the office and “bumped” into him.  At trial, the co-worker testified to a playful bumping, horsing around.  Applicant was not amused.  Citing a general dislike for the co-worker, applicant shoved him back hard, intending to show displeasure but not to play around.  Applicant, apparently, bit off more than he could chew and ended up in the hospital, later claiming an injury to the left eye, bilateral upper extremities, left hand, and left knee.

The WCJ held that, because applicant himself was not engaged in horseplay, the horseplay of other employees can not provide a defense to the self-insured employer.

This case may sound familiar, and it should.  These facts are similar to those in the case of Sergio Nufio v. Bridge Hospital, LLC.  If two employees are horsing around, and one gets hurt, what’s to stop the hurt one from saying that he wasn’t having fun?  Unfortunately, the horseplay defense seems far too easy to defeat, and an overwhelming amount of evidence, usually from co-workers, will be needed to defeat an applicant’s version of the events.  But are you really going to find a lot of employee witnesses eager to testify against a co-worker?

One of the stories making the news around the internet is that Walmart has elected to opt out of the workers’ compensation system in Texas.  Now, now, before you get all excited about escaping a system that leaves every possible participant dissatisfied (except the occasional lien claimant), California does not allow its employers to opt out of workers’ compensation.  Texas and Oklahoma do.

Why is this relevant to California?  More and more businesses in California are finding the Golden State to be a bit too expensive for their business-blood.  When big-name employers like Walmart (and Target) decide the workers’ compensation system is not worth it, it makes waves in the news world and posits the question to California businesses – is California worth it?

As a defense lawyer, I am very well aware that my entire practice depends on employers staying in California and, ideally, growing in California.  Insurance companies understand this as well – the client, the customer, the almost-business-partner, is the array ranging from the solo practitioner who wants to get insurance for himself to the Walmarts of the world (but not Texas) buying insurance for their thousands of employees.

Applicants’ attorneys and labor unions don’t seem to understand this – even the settlers of Easter Island eventually realized that you can only cut down so many trees before there aren’t any left.

This blog has made the point before and will, with all decorum, make the point again:  unless something is done to cut the costs of the workers’ compensation system, Texas employers will continue to opt out, and California businesses will become Texas businesses.

A recent panel opinion discussed the issue of waiver in the context of workers’ compensation.  Your gadfly blogger will quickly run through the facts so he can begin yet another angry rant against the workers’ compensation system.  (The case is Israel Granados v. Barrett Business Services).

Applicant saw a number of treating physicians within defendant’s MPN for a variety of alleged injuries, including injury to the hand, arm, wrist, upper extremity, psyche, and in the forms of a sleep disorder and headaches.  So what’s the problem with humpty-dumpty?  He decided the treating physicians weren’t giving him a high enough rating and he elected to go outside the Medical Provider Network.

When the workers’ compensation Judge ruled that the extra-MPN reports were not admissible (see Valdez).  At that point, applicant demanded panels in various specialties, psyche amongst them, citing objections to the MPN treating physician reports.  This was a puzzling development, given that none of the MPN physicians had yet issued an opinion with respect to applicant’s psyche claim.

Defendant went along with the dance, striking one psyche qualified medical evaluator from the panel, requesting the remaining PQME address certain issues.  But, after reviewing the report, objected to the psyche QME as improperly obtained.  The WCJ and the Workers’ Compensation Appeals Board both found that defendant had waived his objection to an improperly requested panel (“we will deny reconsideration because by failing to object to the section 4062 and 4062.2 process until it was complete, the defendant invited any error and waived any objection.”)

The same treatment, however, does not often extend to applicants and their attorneys.  If you are reading this blog post somewhere with privacy, go ahead and raise your hand if you’ve had a Judge allow an applicant to get a second panel because he or she became represented after the first panel QME didn’t award total permanent disability for a paper cut, even after there was an evaluation and report.

This policy of waiver applies more evenly or fairly the higher one goes in the chain of appeal, but on the ground level, far too often there is leniency afforded to applicants and their attorneys that would get a defense attorney sanctioned.

In any case, the defense bar will just have to look at this as a training tool – under these conditions, we are always at our very finest in order to get the job done.

Word around the proverbial water cooler has it that Judge Gene Lam, of the San Francisco Board, is heading to Oakland to take over as presiding judge (effective April 16, 2012).  No doubt Judge Lam will be greeted every morning by the charming sight of Oakland’s finest protestors “occupying” Frank H. Ogawa Plaza (just yesterday morning, your ever-busy blogger witnessed city workers cleaning up the latest “art work” left behind by these fine, young people.)

In any case, WCDefenseCA congratulates Judge Lam on his new post and wishes him a smooth transition and a productive stay.

You remember Tommy Jenkins, don’t you?  He was your classmate in eighth grade who used to brag about how fast he could run.  When you didn’t believe that he was the fastest kid in school, he offered to prove it by pinching the neighborhood dog and outrunning him to the safety of the tree house.  Naturally, when Tommy got a cramp from all the candy he had been eating and ended up being bitten by the dog, he blamed you for putting him in the situation…

Tommy grew up and tried out for the Los Angeles Fire Department.  In the case of Michelle Mapstead v. Workers’ Compensation Appeals Board (writ denied), applicant filed a claim against the City of Los Angeles for her injuries sustained while involved in a firefighter training course.

Apparently she fell during an “up and over” exercise drill, sustaining injury to her back, chest, and respiratory system.  Although her case-in-chief settled, she continued to press her Serious and Willful claim against the City.

Serious and Willful misconduct, government primarily by Labor Code sections 4553 and 4553.1, requires the meeting of a fairly high standard for an applicant to meet in order to increase the amount of applicant’s recovery by 50%.  Basically, the employee needs to prove that the conduct of the employer, manager, or supervisor amounted to “an intentional act or an intentional failure to act, either with knowledge that serious injury is a probable result, or with a positive and active disregard for the consequences.”  (Johns-Manville Sales Corp. v. Workers’ Comp. Appeals Board)

Evidence presented at trial reflects that applicant had qualified for the firefighter program in 1994, but was put on the wait-list due to a hiring freeze.  She stopped keeping herself in that level of physical fitness about a year later, already giving up hope of ever being admitted into the program.  In 1998 she was offered enrollment into the program and she happily accepted, beginning the rigorous training program.

On the day of her injury, she was engaged in various drills, including the “up and over” drill.  As the various drills continued, she began to grow tired and feel weakness in her hands, although she kept this fact to herself and didn’t tell her supervisors.  Eventually, while climbing a 70-foot ladder as part of the drill, she fell and sustained her injury.

Her theory on the serious and willful claim, which probably had just enough merit to it to avoid a countersuit for malicious prosecution, was that the screening tests (like the one she passed in 1994) were inaccurate and that the Fire Department staff didn’t properly observe her to note her fatigue.

The workers’ compensation Judge, the WCAB, and the Court of Appeal all sided with the defense, reasoning that the conduct of the defendant was not malicious or reckless or intended to cause harm.  Applicant simply could not make the cut – she had done the same drill 18 times before, but was worn out by a mixture of other drills.

But let’s look at the other side of the argument.  Your humble blogger recognizes that as an attorney, his work does not often have the effect of life-and-death (there are rare moments when my expertise is sought to resolve knife-fights based on confusing Law and Order episodes, however).  But this is not the case for a firefighter – citizens depend on firefighters to protect their lives and property.  Firefighters depend on each other to get in effectively and get out safety.

Applicant failed to keep herself in proper physical shape to perform the job.  She failed to disclosure the physical limitations that developed between her physical screening and her entry into the academy.  She concealed her growing fatigue from her fellow trainees and instructors.

Had she, by some cruel twist of fate, become an active firefighter, who knows the lives and, of lesser importance, property that could have been lost through her unwillingness to communicate her limitations to her fellow firefighters.  And, after all this, she has the nerve to accuse the defendant of serious and willful misconduct.  Tommy Jenkins, alive and kicking.

So let me get this straight… applicant-nurse is “attacked” by a teen-aged patient and sustains a scratch and a bruise.  She shrugs it off and goes about her day.  Six days later she has a stroke (arguably caused by her pre-existing, non-industrial hypertension) and then dies more than a year later.  The panel Qualified Medical Evaluator finds her stroke and death to be non-industrial… and somehow the workers’ compensation Judge still comes down on the side of the applicant?

In the case of Amelia Mendoza (Dec’d) v. Workers’ Compensation Appeals Board, applicant nurse was evaluated for her scratch and bruise while she was suffering from non-industrial hypertension and high blood pressure.

The workers’ compensation Judge went so far as to say that the panel QME was a doctor “hired by defendant” and disregarded his opinions as influenced by a “bias in favor of a hospital where he may wish to practice and a defendant who he may wish to do QME work for.”  Still no word on whether chiropractor QMEs can be disqualified for “bias” because they may want to later serve as treating physicians for the applicants they evaluate.

After the trial, the WCJ awarded death benefits when no claim for death benefits had been made and the only issues at trial were Arising out of Employment/in the Course of Employment (AOE/COE) and applicant’s attorney’s fees.

So what did the WCJ base his conclusion on, if not the opinions of the “hired” and “biased” panel QME?  The treating physician – the one who:

(1) relied on the widower-husband’s accounts of the “attacks” who was not present during the time of the attacks;

(2) relied on a report of a head injury (which were not mentioned in any contemporaneous medical reports); and

(3) somehow found a causal link between applicant’s high blood pressure and the scratches she sustained during the “attack” simply because both were observed at the same time.

The Workers’ Compensation Appeals Board, in granting defendant’s petition for reconsideration, held that the WCJ appeared to imply that “when an employee with pre-existing nonindusrial hypertension seeks treatment for a minor industrial abrasion and exhibits concurrent elevated blood pressure, the employer thereafter becomes liable for all treatment and consequences of the employee’s elevated blood pressure.  That is not an accurate interpretation of workers’ compensation law.”

Not easily discouraged, applicant filed a petition for writ of review … which the Court of Appeal denied.

Appeals are expensive and time-consuming, but they are often worth it, especially in cases like these.  The defense stuck to its proverbial guns and didn’t allow its case to get steamrolled.  WCDefenseCA sends its salute to the Huntington Hospital. 

Workers’ compensation insurance is just that – insurance meant to provide speedy and practical assistance to workers injured while on the job.  It is not insurance against car accidents or a tool to get back at your boss.  For Yadder Espinosa, of Ventura County, this is somewhat of a rude awakening.

WCDefenseCA doesn’t normally name names, but when workers’ compensation fraudsters finally get the conviction (criminal, not moral) that they earned, your righteous blogger has no hesitation in saving potential-future employers of such criminals from making a hiring mistake.

The basic story is as follows:  Mr. Espinosa gets into a non-industrial vehicle collision and begins treating various body parts.  Some time latter, he is fired from his job and marched off the premises.  He then returns, allegedly to recover some personal items, before stepping on an imaginary banana peel and “falling.”  Refusing medical treatment, he then drives himself to the hospital and claims injury to the same body parts affected by the vehicle collision.

Throughout the claim, while receiving $40,000 thanks to his fraud, Mr. Espinosa didn’t disclose the vehicle collision or even the fact that he was receiving treatment for the injury.

District Attorney Gregory D. Totten is to be credited with securing a felony guilty plea to a violation of Insurance Code section 1871.4.  Mr. Totten intends to seek full restitution of the $40,000 wrongfully obtained by Mr. Espinosa.  In all likelihood, however, the money has been spent, in whole or in part, and there are no funds from which to reimburse the District Attorney’s office for its time, much less the costs incurred by the employer – think of the swarm of liens, the fee-hungry applicant’s attorney, and, of course, the cost of the defense.  The damage is done and defendant will probably never be made whole.

Such is the danger of allowing fraud to go unnoticed, unchecked, unpunished, or undeterred – the employer and the district attorney’s office are to be commended for holding the line in this case and setting an example for the rest of the workers’ compensation community.

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.

Let’s say you want to get a qualified medical evaluator to take a look at the applicant’s hearing and determine if there is any basis for apportionment or to argue AOE/COE.  It’s simple, you would just request a panel in with the specialty of audiology, right?  What’s that you say?  There’s no such specialty… not even at the QME database on the Medical Unit’s website?

Well, it looks like there may be a change to that soon enough.  Assembly Bill 1454, introduced by Assembly Member Solorio (D-69th District), unanimously passed through the Committee on Insurance on March 28, 2012 and is on its way back to the Committee on Appropriations.

Some of my readers may recall that Assemblyman Solorio has been mentioned on this blog before, having exerted his influenced in an effort to see the temporary disability cap raised to 240 weeks.

We’ll have to keep our collective eyes on this one – before we know it, we may be fighting off prescriptions for blue-tooth devices and trying to figure out if the new crop of audiologists has an applicant bias.