WCDefenseCA

Alright, dear readers, it’s Friday, and the subject of today’s post is sexism and workers’ compensation, but your humble blogger doesn’t want to tell any sexist jokes, so here’s a video of construction workers NOT cat-calling:

Ok, so, the buzz around all the workers’ compensation (and some of the non-workers’ comp) news sources is that Assembly Bill 305 is going to strive to reverse sexism in workers’ compensation law.  Now, AB-305, introduced on February 12, 2015 by Assemblywoman Gonzalez, has absolutely nothing to do with workers’ compensation, but from the looks of it, California Applicants’ Attorneys’ Association has a draft of the language that may eventually be introduced here.

Basically, the idea is that Labor Code section 4663, which requires “[a]pportionment of permanent disability [to] be based on causation” to be amended to specifically exclude pregnancy, breast cancer, menopause, or osteoporosis from the apportionment analysis.

Now, your humble blogger is no political analyst, but I’m guessing that this would not be an issue, and no such bill would be necessary, if doctors never apportioned the cause of permanent disability to these conditions.  I’m also not a physician, but I’m going to go out on the proverbial limb and say that some doctors could reasonably conclude that the effects of pregnancy, breast cancer, menopause, or osteoporosis might contribute to the overall permanent disability of an industrially injured worker.

As such, if, non-industrial conditions are causing permanent disability, and AB 305 would prohibit apportionment to them as non-industrial causes of permanent disability, aren’t we just forcing employers to provide permanent disability benefits for non-industrial disability?

The language in this proposed piece of legislation continues that “[a]pportionment in cases of psychiatric injury may not be based on psychiatric disability or impairment caused by sexual harassment.”  Again… if a portion of an injured workers’ psychiatric permanent impairment is caused by sexual harassment, particularly non-industrial sexual harassment, why should the employer be forced to pay for the same?

Interestingly enough, and I hesitate to write this less I provide anyone with ideas, Labor Code section 3208.3(b)(1) requires that the injured employee claiming a compensable psychiatric injury prove, by a preponderance of the evidence, that actual events of employment were predominant as to all causes combined of the psychiatric injury.  So, if 50% of the permanent disability of the non-psychiatric injury is caused by menopause, and we can’t apportion the PD to the menopause, the menopause is still not an actual event of employment.  Causation of permanent impairment and causation of injury are different points of analysis, after all.

Now, on the “bright side,” that means more money for injured workers and more money for the attorneys of injured workers.

On the other hand, in the long run, when we reach the tipping point and start losing more jobs.  You see, dear readers, in the circle of economic life, applicants’ attorneys need injured employees.  But, of course, injured employees (and non-injured employees) need employers.  It goes without saying that insurance companies and defense attorneys are in the same cycle of economic life.

With all due respect to assemblywoman Gonzalez, I am hoping this idea has a bright and short life in the discussion pools, and then settles comfortably into a footnote status that some researcher will uncover in 50 years (Did you know that in 2015, some people wanted to exempt from apportionment certain conditions which are typically suffered by women?).

Hello, dear readers!

Psyche injuries are curious things – and it’s always fun to try to unravel issues such as causation when it comes to psyche claims.

In the case of Clacher v. The Call Center, LLC (writ denied), applicant sustained orthopedic injuries after being struck to the ground by a co-worker.  She claimed psychiatric injury as well orthopedic, but the psyche AME found that applicant’s report of her assault was not plausible, but if the assault occurred, then it was likely the cause of the current psyche problems.

At trial, the Workers’ Compensation Judge found applicant to be truthful, and to have credibly testified to the assault, and to the symptoms that manifested only after the assault.  So, when defendant sought reconsideration, it challenged this very finding – after all, the AME in psyche didn’t believe applicant’s version of events, and thought she had pre-existing psychiatric problems.

The WCAB reversed, and the line of logic went as follows:

1. Labor Code section 3208.3(b)(1) requires an employee to establish that actual events of employment were predominant as to all causes of the psyche injury;
2. An employee alleging injury to the psyche resulting from a violent act requires only substantial cause rather than predominant cause (35-40% vs. 50%) (Labor Code section 3208.3(b)(3))
3. Throughout the medical record, the Psyche AME affirmatively opined that the psychiatric injury was NOT caused by actual events of employment.

The issue that was of particular interest to your humble blogger was that of the role of each party in the process: the AME concluded that applicant was not a credible historian, and did not believe the work-assault caused her psychiatric injury.  It appears, from the Lexis summary, that the AME did not even believe that a work assault took place.

On the other hand, the WCJ obviously did… finding the injured worker credible, as well as her telling of the events which lead up to her injury.

So, when the WCJ determines a lay fact, isn’t the expert witness, the AME in this case, to some extent required to adopt that fact and apply the medical expertise to it to reach a conclusion?

What if the situation was reversed?  What if an AME had found an applicant to be credible, but an aggressive cross-examination lead the WCJ to conclude that applicant’s testimony (and statements) should be rejected as untruthful?  Would the AME’s opinions as to the credibility of the injured worker trump those of the WCJ’s?

Ultimately, the WCAB seemed to find, in the Clacher case at least, that it did not appear possible for applicant to establish that the psyche injury was compensable when the medical record did not support such a finding.

A defense victory to start off your week, dear readers!  Isn’t that a good thing?

Welcome back, dear readers!  It’s finally 2015 – the long awaited date of everyone who ever watched the famous movie, Back to the Future, Part II.  In that wonderfully entertaining film from 1989, the story’s hero, Mr. Marty McFly, travels to 2015, where we encounter a sneak-peak of what fashion would eventually be like.  In case you’re wondering, this is us casual:

and this is us in business attire:

Well, 2015 is looking good already!

Anywho, your humble blogger thought we’d start this year off with a straightforward and simple post.  In the recent writ denied case of Bracken v. Team Commercial Construction.  Applicant had sustained an injury all the way back in 1996 after a bit more than two months on the job.  He then was off work for about nine months, before returning to modified duty for a day and then going off work again.  Well, he was finally laid off in mid-June of 1997, with, effectively, a little less than two years on the books.

Applicant then claimed a psyche injury, but, as any defendant would in such a situation, defendant raised the 6-month employment rule of 3208.3(d), arguing that applicant was not employed for six months, because he actually worked less than six months, despite being “on the books” for almost two years.

Labor Code section 3208.3(d) specifically provides that a psyche claim requires that “the employee has been employed by that employer for at least six months.” Does being on the books mean being employed for the purposes of 3208.3?

Well, Wal-Mart Stores v. WCAB, a 2003 Court of Appeal case, held that “employment … mean[s] the performance of actual service for the employer.”  In other words, simply being on the books is not enough.  Accordingly, time spent on temporary disability is likewise not part of the six months.

Now, here’s a thought (or, more accurately, a stretch).  If six months of “performance of actual service for the employer” is the requirement, then what about seasonal work?  Weekend employment only?  Shouldn’t six months be converted into days, and those days of “actual service” be calculated?  An employee working two days a week would then have to wait longer before filing a psyche claim than one working five days.  Again, dear readers, just another crackpot thought.

Welcome to 2015!

Here were are again, dear readers.  Some have come willingly; some don’t know how to make the “unsubscribe” button work on their e-mails (it’s just there for show, dear readers – you’re stuck with me for good!).  Whichever way you made it here, it’s time to wrap up the story of Ivan and his totally permanently disabling paper cut injury.

Labor Code section 3208.3(d) provides that, for a psyche claim to be compensable, an injured worker must have been employed at least 6 months, unless the injury was caused by a “sudden and extraordinary employment condition.  Leaving aside the 3208.3 defenses involved in this case, and boring poor Ivan with the particulars of what is considered sudden and what is considered extraordinary, do these rules still apply?

Is it enough to show that there is a catastrophic event, under Labor Code section 4660.1, regardless of the applicant’s tenure?  Can an injury be catastrophic under section 4660.1, and yet not sudden and extraordinary in the meaning of 3208.3(d)?  And what effect do these moving parts have on the benefits to which an injured worker may be entitled?

The language of 4660.1 suggests that the measurement of the operative words, “catastrophic” refers to the injury, or rather the physical effects of the injury – paralysis, loss of a limb, severe burns, severe head injury.  By contrast, section 3208.3(d) discusses a “sudden an extraordinary employment condition.”  Furthermore, while the failure to establish at least 6 months of employment or a sudden and extraordinary employment condition precludes the recovery of any “compensation,” the failure to establish a catastrophic event merely precludes any increase in impairment due to the psychiatric injury.

Section 4660.1(c)(1) specifically provides that “[n]othing in this section shall limit the ability of an injured employee to obtain treatment for … psychiatric disorder, if any, that [is] a consequence of an industrial injury.”

So, in other words, if all that you’re missing is proof of a catastrophic event, Ivan may be able to secure the right to treatment, but if Ivan’s employment was less than six months in length and the injury wasn’t caused by a sudden and extraordinary employment condition, Ivan may be out of luck completely.

But… where does that leave temporary disability benefits?  TTD isn’t medical treatment, as specifically protected by section 4660.1(c)(1), yet it’s not really an increase in impairment, as excluded by section (c)(2).  A good defense attorney would argue that if the legislature wanted to protect temporary disability benefits, the legislature could have done so as did for medical treatment.  But, at the same time, any applicant’ attorney would likely argue that if the legislature wanted to exclude temporary disability benefits, it could have done so as well, like it excluded any increase for impairment.

At this point, with little to no authority on the subject, it looks like an injured worker could make it past the hurdles of 3208.3 but fail to make it past the test of 4660.1, and thereby become entitled to temporary disability and medical treatment, but not permanent disability.

In Ivan’s case?  It may be a hard sell.  His three-month tenure with the paper factor probably precludes any psyche claim, as being barred by Labor Code section 3208.3.  But, let’s say his attorney manages to persuade a WCJ that 4660.1 renders 3208.3 inoperative, or perhaps that the slip-and-fall and the fluttering piece of paper were sudden and extraordinary, then perhaps he might be able to get medical treatment and temporary disability benefits.

However, aside from applicants’ attorneys’ fantasies, there’s no basis to conclude that 3208.3 is somehow made inoperative by 4660.1.  So make sure there’s another bullet point on your checklist, because, even if a doctor or a medical evaluator finds Ivan permanent and stationary and assigns any level of permanent disability, unless the adjuster on his case thinks that the injury was “catastrophic,” he’s probably going to see a denial notice issued.

What do you think, dear readers?  Should Ivan let the matter go, or just get over his paper cut and get back to work?

When your humble blogger was just knee-high to a grasshopper, long before he was the freakishly (and handsomely) tall workers’ compensation defense attorney that sits before this very screen, my uncle Joe sat me down on his knee and gave me a very important lesson.

“Sometimes,” he said, “people get hurt at work, and sometimes those injuries cause psychiatric injuries as well as physical ones,  but those injuries are barred by Labor Code section 3208.3(h) unless the employee has been with the employer for at least six months, or the injury is resulting from a sudden and extraordinary event.”

My uncle Joe was a wise man, and this subsection has come to bar many claims.  Recently, the Court of Appeal denied applicant’s writ of review of a WCAB decision finding that applicant’s injury was NOT extraordinary when his tool belt caught on a 250 pound truss causing it to fall on him, injuring his left side.  (Alves v. SCIF)

There wasn’t much dispute that the injury was sudden, but extraordinary?  Does applicant have a case?  What do you think, dear readers, if a 250-pound truss suddenly fell on a carpenter version of you, would it be extraordinary?

Well, the WCAB, in reversing the WCJ, found that applicant’s claim was defeated by the “extra-ordinary element.”

Rejecting the WCJ’s report, which relied on the panel case in Matea v. WCAB (2006), wherein a Home Depot employee to find that a pile of logs falling on a worker’s leg was both sudden and extraordinary, because, in this case, the two are not the same.  In the WCAB’s opinion, the falling of a truss was NOT extraordinary, because it could happen at any time when anything, including a tool belt gets caught on it.

The WCAB also relied on the Court of Appeal case in Bayanjargal, which held that a roofer’s fall from a roof was not an extraordinary injury.

Now, there’s an important lesson to take away from this – don’t be disheartened if the case doesn’t work out at the trial level.  The defendant in this case didn’t and it came back with a victory.  Why?  Because there is an undeniable level of subjectivity in this analysis – like jurors in a tort civil trial, the WCAB commissioners and the WCJ are asked to determine what is reasonable expected in any given industry, which it is unlikely the commissioners and WCJ’s had been engaged in themselves.

So, if you take a hit at the trial level on a 3208.3(h) case, don’t be shy about a petition for reconsideration.

Have a great weekend, folks!

Alright, dear readers, I’ve got an interesting one for you today!  (Not that I don’t always have interesting stuff…)

As we know, Labor Code section 3208.3(h) provides a defense to psychiatric injury allegedly sustained by an employee with an employment history of less than six months with that employer, unless the injury was sudden and extraordinary.  The sudden part is usually a given, but the extraordinary element depends on the nature of the work.

For example, burning one’s hand with an iron while engaged in the dry-cleaning trade is exactly what you would expect to happen, so it’s not extraordinary.   (Bonilla v. WCAB.)  The same can be said of falling off a 24’ ladder while picking avocados.

But, in the recent case of Carlos Torrez v. Sequa Enterprises, the WCJ found, as did the WCAB, that a window-installer falling from a second-floor scaffold is “extraordinary.”

Mr. Torrez was employed installing a window on the second floor of a residential unit, having been employed by Sequa for less than six months, and when scaffolding rocked (apparently it was not tied to the building) he fell between the scaffolding and the building, causing very serious injuries.  It appears that the employer had failed to adopt some of the safety measures used by other scaffold-using businesses.

In resisting the psyche claim, however, the defense raised the issue of 3208.3(h), which shifted the burden back onto the applicant to prove that this was an extraordinary injury.  Well, not content to simply lose out the psyche claim, the applicant’s attorney went on the offensive and found an expert witness to testify that a fall from a second-floor scaffold WAS extraordinary in this business.

Applicant put on a 30-year veteran of the construction industry, who had worked on over 400 projects, 90% of which had involved scaffolding work.  In his opinion, this injury was not one that a person would expect doing this type of work.

The WCAB affirmed – there’s no need for a professional degree or license to qualify as an expert, and it was sufficient that the witness possessed special knowledge of the subject matter (typically to bridge the gap between the fact-finding duty of the WCJ and the facts that are beyond common knowledge).

But recall, if you will, that in the avocado case, the injured worker testified to having picked fruit since he was 17 years old (being 35 at the date of injury), and that between 1992 and 2010, had never fallen off a ladder, nor heard of anyone else doing the same.  In that case, the injured worker’s testimony, which was the functional equivalent of the expert witness testimony in this case, failed to sway the Court of Appeal.

So, dear readers, what should the defense community do to respond to such a situation?  Well, when we’re facing a psyche claim perhaps it should be standard operating procedure to locate an expert witness that will affirmatively prove (if only to negate applicant’s attempt to meet his or her burden) that the event was not extraordinary.

Realistically, the best person to help you with this is going to be the employer, who will likely be familiar with the industry and know someone who is a 30-year veteran or the like.  And it might prove to be worthwhile to go after the extra litigation expense of retaining an expert.  It certainly paid off for applicant in this case.

Are you ready for the latest Guzman case, dear readers?  Oh, no, not that Guzman, but rather David Guzman v. Sysco Foods.

The case turned on the issue of applicant’s (attempted) reliance on a “collaborative” medical report.  Apparently, in some medical offices, patients are treated by a team of physicians – like a bottle of Popov’s vodka in a college dormitory, the applicant was passed around several psychiatrists, who all took swigs of her symptoms and later produced reports as “collaborative” work product.

The following scene comes to mind:

Applicant sought to rely on those reports at trial, and the WCJ rejected them because they were not from the medical provider network.

Upon review, the WCAB held that it would have admitted the reports, and then immediately discarded them as failing to establish that “actual events of employment were predominant as to all causes of that psychiatric injury” as required by Labor Code section 3208.3(b)(1).

But how? The doctors sang in chorus of the evils of the employment and the injury done to their patient.

Because the reports were part of a “collaborative process”, involving multiple evaluators within his office, it was “not clear whether [any of the three doctors] provided medical opinions based on his own examination of applicant and review of the relevant medical records.  Because we cannot be sure that the conclusions in the report are based on a relevant factual basis, we cannot rely on these reports to find that applicant sustained an industrial injury to his psyche.”

Do you have a case where the opinions are based on a “collaborative process”?  You might want to whip this panel opinion out and kick those reports to the curb…

As my beloved readers may recall, this blog reported to you the matter of County of Sacramento v. WCAB (Michael Brooks), in which the County of Sacramento valiantly but, at least initially, without much success, the determination by the Workers’ Compensation Appeals Board that a probation officer’s grievance and personal feelings in response to his perception that the grievance was not properly responded to by his supervisors, did not constitute a “personnel action” under Labor Code section 3208.3(h), and the resulting injury to the psyche was therefore compensable.

In that post, your humble blogger made the argument that an applicant’s personal feelings in response to a good faith personnel action are the same as the action itself, and so should bar any recover for an injury to the psyche.

The Court of Appeal reviewed the decision of the WCAB, and reversed.  The reasoning behind this oh-so-gratifying reversal?  “The Board’s causation analysis treated Brooks’s ‘feelings that he was unsupported by his supervisors’ as a cause of psychiatric injury, as did [the Agreed Medical Evaluator].  In reality, however, his feelings were the injury, or symptoms of the injury, not the cause of the injury.”

But the fun doesn’t stop there.  As my readers may recall, there was a similar case, The Tribune v. WCAB.  In that case, the Workers’ Compensation Appeals Board found that there was no good-faith personnel action defense to bar the psyche claim of Arthur Ecker, because the injury was caused by his “stress” of having to take on new job duties, mostly related to the increased use of computer technology.  This increase in duties was, after all, a good-faith personnel action on the part of the Tribune, which sought to reduce its staff because a decrease in circulation necessitated a 2/3rd reduction in staff.

In that case, again, applicant effectively made the same argument – his feelings in response to the personnel action were the basis of his injury.  EAMS reflects a date of injury of November 16, 2008 and that the matter resolved with a finding and award.  Should someone tell the Tribune to petition to re-open the case and stop all benefits (if any remain to be provided)?  Tick-tock…

Does the Workers’ Compensation Appeals Board take sides in the fast-food wars?  Do the Commissioners, normally unbiased and committed to the law, take some special form of vengeance against the good people over at Carl’s Jr.?  Undoubtedly, some night years ago saw a drive-thru order for curly fries erroneously and callously fulfilled with regular French fries.   Perhaps a diet soda was served where a regular soda was ordered.  And, who can forget the shame of a ketchup stain on a commissioner’s favorite robe?

This blog had occasion to report to its sharp-witted and kind-hearted readers the case of Bertha Chan v. Carl’s Jr., in which the WCAB held that the post-termination defense of Labor Code section 3208.3(e) did not bar Ms. Chan’s claim for cumulative trauma.  Now, it appears that your humble blogger must once again report to his loyal and dedicated readers that the WCAB has again rejected poor Carl’s defense of a post-termination claim.

The case is that of Maria de Jesus Flores v. Carl’s Jr.  The basic facts are these: Ms. Flores gave two weeks’ notice that she was quitting her job, but was fired before the two weeks had ended.  Less than two weeks after her last day, applicant filed a claim for an alleged injury to her back, upper extremities, lower extremities, neck, head neurological system and psyche, allegedly sustained as a cumulative trauma.

The workers’ compensation Judge ordered applicant to take nothing, reasoning that she was let go by her employer and the post-termination defense barred her recovery.  Applicant petitioned for reconsideration and the WCAB was happy to oblige, glaring angrily at Carl’s Jr.’s Answer from behind their respective Happy Meals.

The commissioners reasoned that an employee who voluntarily quits will not be barred by Labor Code section 3600(a)(10).  The reasoning is fairly straightforward:  the defense in question was intended to protect employers from angry former-employees seeking revenge for being fired, and when an employee voluntarily resigns that’s unlikely to be the case.  After all, it’s the guy who gets dumped that’s bitter about the relationship, not the girl who dumped him.  Well, it’s her loss… Ms. Flores’ loss for quitting, of course.

There are, of course cases, in which this logic would not hold – for whatever reason, Ms. Flores’ employer let her go early – they were entitled to more days of her labor and they didn’t want it.  The facts that Ms. Flores was quitting and that Carl wanted her out suggest that there may have been some hard feeling after all.

In a typical employee-employer relationship, an employee could do some single act which would warrant an immediate termination of employment.  The fact that the employee was already on the way out does not negate the reasoning behind the code section.

Carl, this blog wishes you the best of luck with the Court of Appeal!  Hopefully, your fine cuisine will have more fans on the higher bench.

Eureka!  No, dearest readers, your humble blogger has yet to strike gold, nor has he found anything all too exciting, except of course, a panel decision from that northern Board – Eureka.  The Workers’ Compensation Appeals Board recently reviewed a decision of the workers’ compensation Judge in Eureka in the case of Donna Larson v. State of California, Department of Corrections.

It appears that the main issue on review is the method of analysis with respect to (1) applicant’s claim of an injury to the psyche; and (2) applicant’s claim to discrimination in violation of Labor Code section 132a.

Applicant worked as an accounting supervisor and, after a worker was transferred laterally to be under her supervision, she began to have what can only be described as personality conflicts with him.  She accused him of sexual harassment, a charge which appears to be unsubstantiated.  He accused her of unfair labor practices for penalizing him for the time he spent as a union representative.

In any case, her complaints were investigated by her supervisors but were eventually dismissed.  She didn’t take this very well and apparently this contributed to her alleged psyche injury.  Some of my readers may recall a similar situation, in the case of County of Sacramento v. WCAB (Michael Brooks, writ denied) in which a supervisor claimed a psyche injury because his complaint about a subordinate did not result in a sufficient reprimand.

Intertwined with applicant’s psyche claim was applicant’s 132a claim.  Defendant argued that the facts underlying the 132a claim contributed to the psyche claim, a finding echoed by the WCJ.  However, defendant also argued that the termination of applicant’s employment had a business necessity defense, which was supported by witness testimony as to the employer’s workload and applicant’s one-year absence.

So, if applicant’s termination of employment was a “lawful, nondiscriminatory, good faith personnel action” as set out in Labor Code section 3208.3(h), and that termination was one of the causes of the psychiatric injury (Labor Code section 3208.3(b)), doesn’t that get the employer off the hook for the psyche claim?

Well, the WCAB relied on the en banc decision in the case of Rolda v. Pitney Bowes (2001) 66 Cal.Comp.Cases 241 (2001), reasoning that for a finding of a psyche injury, a competent physician must take a history of all events contributing to the alleged injury and then make a determination as to whether work events were at least 50% the cause of each individual event.  Then, the physician must determine the percentage of causation attributed to lawful, nondiscriminatory, good faith personnel actions.

The WCJ must determine the psyche injury involves actual events of employment, whether those events were the predominant cause of the psyche injury, and whether any of those events were lawful personnel actions.   Finally, the WCJ must determine if those lawful personnel actions were a substantial cause of the psyche injury.

With respect to the 132a claim, the WCAB held that the Lauher case raised the standard of finding a 132a violation by requiring a worker to show not only conducted by the employer detrimental to the employee, but also that the conduct was specifically targeted towards the employee because of the industrial nature of the injury.  In this case, the defendant presented a business necessities defense.

The matter was returned to the WCJ to prepare findings that conform the outlined analysis for both a psyche injury and a 132a claim.

From the looks of it, however, defendant is in a good position with adequate defenses.  After all, if applicant had hurt her leg skiing and had been gone for a year while the papers built up on her vacant desk, wouldn’t the employer have acted the same way?

Time will tell…