WCDefenseCA

Once in a while, after a private investigator runs a social security number, he or she may notice that there are several people associated with the same social security number.

Unless it is a case of a real-life Multiplicity (great movie, by the way, despite what those jerk critics said), what you probably have is someone who is an illegal alien purchasing a cloned social security number in order to get a job.

Often enough, employers look the other way because they want the cheap labor, but sometimes it’s just a case of pure fraud with the employer as much a victim as anyone else.

If this fact floats up during the defense of a workers’ compensation claim, the obvious position to take is that neither supplemental job displacement benefits, nor a return to work, are any longer entitlements of the allegedly injured employee.

A recent story, however, reflects that sometimes law enforcement organs of the state are ready to prosecute the criminal side of this fraud as well.

It appears that Blanca Rodriguez has been charged with two counts of felony identity theft by the San Bernardino County district attorney’s office.  She allegedly used someone else’s social security number to file a workers’ compensation claim, and received benefits.

An injured worker might want to use an ill-gotten social security number for several reasons, not the least of which is to try to conceal the existence of past injuries.

The employer, however, can benefit from a fraud conviction by using it to derail the credibility of the applicant as to all claims: a WCJ would have to document why, despite the fact that the injured worker is a proven fraud, that workers’ compensation claims are truthful.

Some district attorneys, however, don’t want to pursue prosecution for workers’ comp fraud committed by the injured worker.  The District Attorney of each county is elected, of course, and might do the voter calculations to favor workers over employers and insurers.  In those cases, uninsured employers can expect to feel the cold bite of justice, but employees can rest assured that their crimes will not be addressed.

It is no secret that this humble blogger is pleased to see a District Attorney pursuing justice and the proper discharge of the duties entrusted to the office.  As for all of us civilians, this should serve as a reminder that the social security number can be a valuable tool in verifying information and discovery fraud.

Capping Permanent Disability at 200%

Everyone knows that the intent of the legislature was to allow injured workers to have a maximum of 100% permanent disability per injury – not once, but twice.  What’s that you say?  Labor Code section 4664 says that “[t]he accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee’s lifetime”?

Apparently, in California’s workers’ compensation system, a “lifetime” is defined as before and after SB-899.  For pre-2005 injuries, the injured worker gets one “lifetime” under the old rating schedule.  The other “lifetime” is for injuries sustained after January 1, 2005, or pre 1/1/05 injuries where there is a report documenting the existence of permanent disability after January 1, 2005.  Additionally, there is an argument to be made that any injuries sustained while watching the Lifetime channel would also be compensable.

Well, consider the case of Seafus v. County of Los Angeles, a recent writ denied case.

Applicant had sustained a cumulative trauma to the psyche culminating in 1998 to the heart, cardiovascular system and psyche, and the case was resolved by stipulation in 2004.  Specifically, the 2004 award was for 70% permanent disability, and the award reflected that applicant “is restricted from undue stress and substantial work for slight heart disease.”  The applicant then claimed another injury, allegedly sustained in 2006, also to the heart, cardiovascular system, and the psyche.

Naturally, the defendant sought apportionment, but the Agreed Medical Evaluator (be really, really careful when you pick an AME!) opined that there was no overlap between the two injuries, although 15% of applicant’s permanent disability was apportioned to the 1998 cumulative trauma under Labor Code section 4663.

In relying on the AME’s reports, the WCJ reasoned that the actual medical documentation for the prior cumulative trauma supported a preclusion from “very heavy work” rather than the “substantial work for slight heart disease” listed in the actual award.

Also, it did not appear that the AME in the instant case was able to convert the 1998 injury to AMA Guide ratings to allow for apportionment.  The WCJ then issued an award finding 87% permanent disability, less 15% apportionment, from applicant’s new injury.  Finally, in rejecting defendant’s argument that Labor Code section 4664(c)(1) prohibited a finding of 157% permanent disability, the WCJ reasoned that Sanchez v. County of Los Angles (en banc), held that 4664 apportionment requires overlap of disability, rather than the same body region.

In this case, the AME did not find an overlap in disability, although the body region appears to be the same.

The WCAB denied reconsideration, and the Court of Appeal denied review.

Your humble blogger has a few problems with this result.  First of all, it is not appropriate to disturb an award or even challenge its validity so many years after the fact.  The original Award was issued in 2004, and the trial for the new injury was held in 2013.  9 years after the Award was issued, and 15 years after the original injury is the wrong time to question the adequacy of the original Award.

As for the rest, a person who is 70% permanently disabled is just that – 70% permanently disabled.  It should matter what rating schedule we used – if you were 70% disabled in 2004, you’re still 70% disabled in 2005, and now that you’re 87% permanently disabled doesn’t mean that you were free of permanent disability at the time you were evaluated.  And yes, dear readers, your humble blogger is well aware of that “fighting word” “Minvielle” from the panel decision of Minvielle v. Contra Costa Fire Protection District, holding that there is no overlap between 1997 schedule work preclusions and factors of disability on the one hand and AMA whole person impairment on the other.  That being said, that writ denied panel decision is hardly controlling law and its rejection should be argued for with the same frequency that Carthage’s destruction must be demanded in the Roman Senate.

For those brave souls that take Mad Men as gospel, smoking was a big part of life at one point in the United States.  Everybody, or almost everybody, smoked, and the smell of smoke was just another part of life.

Well, things have changed.

Entire restaurants, rather than mere sections, are now “no-smoking,” and each legislative session shrinks the area where a person can enjoy fine tobacco products.  In some cities, Davis, CA, comes to mind, smoking is even prohibited in your own home.

So, why should the workplace be any different?

In 1994, the California Legislature adopted Labor Code section 6404.5, which effectively banned smoking within enclosed work spaces.

It appears that violation of this law can now lead to liability for Serious and Willful Misconduct in the workers’ compensation arena.

Consider, if you will, the case of Blaylock v. Negherbon Auto Center.  Mr. Blaylock, a gentleman suffering from asthma, was constantly required to spend long periods of time in the enclosed office of the Finance Manager, who smoked on a regular basis in her office.  The record reflects that he complained frequently about his deteriorating health from having to constantly breathe in the smoke from the finance manager’s cigarettes, but even his eventual trip to the emergency room did not slow or stop her smoking in his presence (or rather, requiring his presence while she smoked).

Applicant was ultimately found totally permanently disabled, and pursued the increased benefits allowed for serious and willful misconduct.

The defense seemed focus on the fact that the employer did not know it was violating the law, and was not aware of Labor Code section 6404.5.  However, the workers’ compensation Judge was not persuaded – reasoning that it is unlikely that an employer was completely unaware of the change in the law, and that the use of the term “enclosed space” by the management reflected at least some knowledge of Labor Code section 6404.5.

Now, it’s important, when considering the merits of this case, to recall that the world was a very different place when applicant had to go to the emergency room in May of 1998.  Smoking was still much more common-place than today, and it is possible that the employer was aware of “a law” and incorrectly interpreted it to mean that, so long as she kept her smoke in her office and not in the general work area, she would be fine.

But, another factor in this was credibility – the WCJ found the applicant to be credible, and the finance manager to be not credible, and such a finding is typically the subject of the WCAB’s deference.

The WCJ found for the applicant, WCAB denied reconsideration, and the Court of Appeal denied review.

The country has changed, and California has changed as well.  Smoking tobacco is not as socially acceptable as it once was, and there is considerable public sentiment against tobacco now-adays.

It will be interesting to see, in the coming years, if the pendulum will swing the other way to require employers to allow medicinal marijuana smoke at work while prohibiting tobacco.

In the meantime, you should probably lay off the whole “forcing employees to inhale second-hand smoke” management style (just a thought).

Have a great weekend!