Archive for July, 2017

COA: One Possible Cause does NOT Mean One of the Causes

July 26th, 2017 No comments

Alright, dear readers – it’s Wednesday.  You’ve made it this far, let’s keep going!

Your humble blogger does not like to sugar-coat reality.  I’ve explained to my children repeatedly, with a detailed and persuasive slide-show, that there is no Santa Clause, that their father likely has a favorite child (although this position is always in flux), and, despite the occasional flare of reason or justice, California Workers’ Compensation is where businesses go to be fleeced and devoured.

So, it is with great reluctance, that I bring you yet another story of reason and the defense community ultimately prevailing in yet another unpublished decision coming from the Court of Appeal.

The case is that of County of Sacramento v. WCAB, McCartney.  The facts are relatively simple: applicant, a peace officer, developed a skin condition which he attributed to his time in the sun on a motorcycle as a deputy sheriff.  The condition, actinic keratosis, may or may not be a precursor to skin cancer.

The QME, a dermatologist, had found that it was not more likely than not that applicant’s time in the sun as a deputy sheriff was the cause of the actinic keratosis.  Applicant has spent time in southern California as a surfer, and also spent his off-work time engaged in out-door activities, exercise, and golf.  The QME advised that there was insufficient factual and medical evidence to support a conclusion that it was on-the-job sun exposure that caused the condition.  The QME also acknowledged that some keratosis eventually become skin cancer, but applicant did not have skin cancer as yet.

When pressed by applicant’s counsel at deposition, the QME responded that the medical literature simply did not establish which of the many factors (recreational sun-time; pre-work sun-time; at-work sun-time; aging, pale skin, immune system) was the tipping point.  It wasn’t that work was a small contributor, it was that there was no way of knowing which of the many factor, if any, were the cause of his condition.

The result of the trial was a finding that there was no scientific basis upon which to conclude that the industrial exposure caused the condition.  So, applicant escalated matters to the WCAB, which reversed!  Citing South Coast Framing, the WCAB found that the QME had found that the on-the-job sun exposure contributed to the condition, but could not conclude the extent of the contribution.

However, the County of Sacramento, having caught the scent of a “take nothing,” was not willing to so easily give up the chase.

Eventually, the case did land on the desk of the Court of Appeal, which offered a different interpretation of the record, and provided a key form of distinguishing the South Coast Framing opinion.  In South Coast Framing, as the Court of Appeal explained, applicant was taking three drugs, one for an industrial condition, which the QME in that case concluded had a 0.01% – 20% causation.  By contrast, in the instant case, the QME concluded that there were many possible causes of the condition, and one of them was industrial.

My favorite line from the (sadly) unpublished opinion?  “The QME never acknowledged that there was a causative role of unknown degree arising out of [applicant’s] employment.  Rather, she took great pains to explain (repeatedly) that it was not possible to attribute the cause of [applicant’s] condition to any particular period of exposure to the sun, and therefore it was nothing more than speculation to identify the work-related exposure as a contributing cause.  Just because the effects of sun exposure are cumulative does not mean [applicant could not have reached a toxic dose before coming to work for the county…” (emphasis in original).

Though severely limited in its application, the McCartney opinion does give the defense community a few things to work with.  First off, there’s a clear distinction between the facts in South Coast Framing, which provided a plethora of causes of which industrial was a small amount, but sufficient to make the claim compensable.

But here, where there are many possible causes, applicant bears the burden of proving that, more likely than not, the industrial exposure is the cause, rather than one of many possible causes.

Additionally, unlike a dispute over some small amount of medical treatment, it might actually be worthwhile to take this issue up to the Court of Appeal on other cases.  Even if your case ultimately results in an unpublished decision, this opinion reflects at least some level of receptive disposition on the part of the Court of Appeal for such a theory.  The difference between industrial and non-industrial can be a vast fortune.

Alright, dear readers, back to work!


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COA (again) Holds That IMR Need Not Be Timely to be Valid

July 24th, 2017 No comments

Happy Monday, dear readers!

Your humble blogger knows full well that he is, far too often, charged with bringing bad news to his beloved workers’ compensation community.  Well, remember, dear readers, that even the crocodile shouldn’t be blamed for the shade in the swamp.

With that in mind, I have some good though belated news to report to you.  Sometimes, confirmation of what we all knew can be just as pleasant, even if not surprising.  The Court of Appeal, in an unpublished decision, ruled that IMR need not be timely to be valid.  The case, of course, is Baker v. WCAB/Sierra Pacific Fleet Services, and, though it is unpublished, it is still of considerable benefit to the defense community.

The facts are pretty simple – applicant sustained an admitted injury and sought medical treatment.  The medical treatment request went through UR, which recommended against certifying the request.  The appeal to IMR followed and, with IMR upholding the UR denial, applicant challenged IMR’s determination because it was not made within 30 days of the appeal.

The WCJ, WCAB, and then the Court of Appeal all agreed that, as the 30 day timeline was directory and not mandatory, so the IMR stood.

This isn’t anything new, of course.  The Court of Appeal in Ramirez held to the same conclusion.

So what’s so great about an unpublished case?  After all, we can’t cite an unpublished case, right?

Well, we’ve had Stevens and Margaris  tell us that IMR is constitutional and speculate that a timely IMR determination is not necessary to be binding.  We’ve had Ramirez and now Baker tell us for certain that IMR need not be timely to be valid and binding.

In other words, the Courts of Appeal have sent a pretty clear message to every WCJ and WCAB commissioner in the land of, as one WCJ would say “a preview of coming attractions.”

Let’s look at big picture, for a moment – the disputed medical treatment in Baker? Pennsaid and Norco.  Drugs.  We’re not talking a whole lot of money in the grand scheme of things.  In fact, Mr. Baker’s attorney might have had more luck paying for these drugs out of pocket rather than pouring in the time and money to go to the Court of Appeal.  But it wasn’t about the Norco or the Pennsaid – it was about undermining IMR.

IMR is a wonderful thing – applicant attorneys used to be able to over-inflate future medical valuation by threatening to take every UR determination to the QME or AME, and run up the bill for the defense.  No longer – now you’re looking at a few hundred dollars every year on IMR – hardly worth the applicant attorney’s effort.

So far, so good, dear readers – have a great weekend!


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Teacher Getting Sick from Students at School is Compensable?

July 10th, 2017 No comments

Happy Monday, dear readers!

I hope you are finding this morning one of good health and cheer.  As an attorney, I feel full of life and health when I am at my post, denying benefits and cheating death avoiding liability for my files, but as a father, I’m well aware that being around little kids in a schoolroom setting is just asking for exposure to every disease known to man.

Kids get sick when they go to school, and since parents can’t always afford to miss time from work, kids go to school even when sick and bring the germs with them – I assume you’ve heard of “show and tell.”

Well, what happens when a teacher gets sick?  After all, even though the students aren’t employees, the teachers certainly are!  Are common illnesses that one might catch on the bus, at the supermarket, on the street, but ALSO in the classroom a compensable injury?

Well, consider the case of Grawe  v. Culver City Unified School District.  Therein, defendant sought reconsideration of a finding of 82% permanent disability sustained by a school teacher in the form of hypertension and psoriatic arthritis.  The AME found that “it was medically probable that applicant developed viral cardiomyopathy as a result of contracting viral respiratory tract infections ‘because of being exposed to communicable viruses from her students.’”  The viral illness, in turn, triggered applicant’s hypertension.

So, the ruling was that, more likely than not, applicant did not catch a cold on the street, on the bus, at the bank, or at home, but at school from her students.  It was further concluded that this illness triggering her hypertension resulted in a compensable claim.

The reasoning that drove this conclusion was the WCJ’s reliance on the LaTourette case, in which the California Supreme Court found that “if the employment subjects the employee to an increased risk compared to that of the general public” then the danger, even if it does not arise out of the employment, may be compensable.  Just so we’re clear, the general public which has their children attending these schools and brining home any communicable diseases is somehow not exposed as the teacher in the school, right?

As such, the WCAB denied defendant’s petition for reconsideration and the Court of Appeal denied Review.  Readers, please compare this with the case of Reff v. WCAB, where the opposite conclusion was reached.

Now, if this case were submitted to Justice of the Peace, Lord of Fairness, and Arbiter of Disputes Grinberg (commonly known as the Humble Blogger), I would have found this to be non-industrial.  The teacher simply did not have any sort of exposure that the general public didn’t have as well.  We’re not talking about traveling through areas known to trigger Valley Fever – we’re talking about catching an illness brought to school by a student from home (where the student’s family and friends were likewise exposed).  But, unfortunately, no one asks pool ol’ Greg for his opinion…

Fortunately, this opinion is not binding, so perhaps we in the defense community can continue the fight!

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Hikida – No Apportionment for You! Not yours!

July 5th, 2017 1 comment

Well, dear readers, I wish I had better news for you.

I know you guys are real troopers – despite overeating at yesterday’s BBQs and receiving treatments at the local hospital’s burn unit for those illegal fireworks that I SPECIFICALLY TOLD YOU NOT TO PLAY WITH, you still made it to work and checked your e-mail for today’s blog post.

Well, if you were hoping that I’d have something to lift your spirits, prepare to get burned (again?)

What I’ve got for you is Hikida, a Court of Appeal decision issued on June 22, 2017, regrettably published and citeable.

The facts are pretty simple and straight forward – applicant was  engaged in clerical work for defendant for over 25 years, and developed carpal tunnel syndrome.  The condition ultimately led applicant to undergo carpal tunnel syndrome, from which she developed complex regional pain syndrome, which according to the AME, rendered her permanently and totally disabled, but that 10% of her carpal tunnel syndrome was caused by non-industrial factors.

Although the WCJ was inclined to provide apportionment to non-industrial causes, applicant argued to the WCJ, the WCAB, and the Court of Appeal that based on the other injured body parts, and the presumption of Labor Code section 4662(a)(2) (“loss of both hands or the use thereof”) that applicant should be found permanently and totally disabled.

The Court of Appeal reasoned that “the disability arising from [applicant’s] carpal tunnel syndrome was apportionable between industrial and non-industrial causes.  However, [applicant’s] permanent total disability was caused not by her carpal tunnel condition, but by the CRPS resulting from the medical treatment her employer-provided.”

The Court of Appeal concluded that the employer is responsible “for both the medical treatment and any disability arising directly from unsuccessful medical intervention, without apportionment.”

From the opinion itself, it does not appear there is an allegation of medical malpractice, negligence, or some sort of defective durable medical equipment.  Sometimes surgeries don’t go well, and this was one of those times.

The net result of this opinion is that documented non-industrial causes of applicant’s permanent disability are wiped out by additional impairment resulting from medical treatment with poor results.  While the applicants’ bar might be celebrating, this defense attorney is certainly hoping for intervention from a higher authority… No, no, dear readers, not THAT much higher – here’s hoping that this one goes up to the Supremes!

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Happy (Early) Independence Day!

July 3rd, 2017 No comments

Happy Monday, dear readers!

Your humble blogger hopes that you have today off as a “gimme” holiday and that you’re ready to celebrate Independence Day, or, as the kids on the internet are calling it, “Brexit 1776.”

Rest assured that your humble blogger is hard at work today, seeking to deny benefits and expedite case resolutions.  But, for those that are busy prepping their own fire-works displays, just a friendly reminder: in many counties and cities in California, private fireworks are illegal and enforcement is in full effect.

Aside from fighting the law (take it from me, dear readers, I fought the law once – and the law won!) fireworks tend to explode.  In fact, most things with the word “fire” in them tend to prompt additional caution (fire-fights, fire-ants, “Greg, you’re fired”) so please, please, please be careful.

Even if your work to-do list flashes between your eyes as the fireworks do their explosive job, odds are this will not be a compensable injury, so the indescribable pleasures of being an applicant in California’s workers’ compensation system will likely elude you.

In any case, your humble blogger hopes you have a safe and happy Independence Day – throw some tea in a bay, tell a person from England “you’re not the boss of me anymore!”, and BBQ to your heart’s delight.

Happy Independence Day!

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