WCDefenseCA

Apparently, the Home Depot can be a stressful place to work.  William Wong worked at Home Depot as an assistant store manager, but was fired shortly after sending his supervisor a letter by facsimile indicating that he intended to file a workers’ compensation psyche claim.  (William Wong v. The Home Depot)

Then, it was all quiet on the comp front for more than seven years, after which applicant resurfaced to file an application for his psyche injury.

Naturally, the defense invoked the statute of limitations and lawful good-faith personnel action under Labor Code section 3708 defenses.  The workers’ compensation Judge ruled that applicant had documented that the employer had notice of the claimed injury, but he had not been provided with a claim form, and the injury had not been denied within 90 days, so it was presumed compensable under Labor Code section 5402.

If anyone other than applicant’s evaluating physician asked what applicant had been up to in those seven years between the “injury” and the filing of the application, applicant could have told them about his arrest for possession of a controlled substance and resisting arrest.  But that information wasn’t given to the evaluating physician.  He also told the evaluating physician that there was no history of psychosis in the family, even though his uncle had committed suicide.

Needless to say, the workers’ compensation Judge was not impressed.

Although the WCJ held that the presumption of compensability under Labor Code 5402 applied, that presumption was rebutted because applicant proved to be an unreliable historian, meaning that the medical reports based on his statements were not substantial evidence.

Also, the WCJ reasoned, the history of criminal activity and drug use could have been causative factors in his psychotic break.   In other words, as your humble blogger likes to say, No Soup For You!

Bear in mind, my dear readers, the defense in this case got very lucky.  Applicant had a bad history, and lied to the evaluating physician.  If applicant had not lied about his arrest history and the psychosis history of his family, he would have probably recovered and only suffered a bit of apportionment.  In any case, let this be a lesson to us all – hand out claim forms early and often!

Your humble blogger was at his post yesterday, diligently fighting off claims and liens, when he suddenly received an alert of extraordinary nature.  The Court of Appeal, in an opinion posted only yesterday afternoon, has rendered its decision in the case of State Compensation Insurance Fund v. Workers’ Compensation Appeals Board, granting the relief sought by the defense.

In short, falling from a tree or ladder, while sudden for everyone and extraordinary for some professions, is not an extraordinary event for fruit pickers (avocados are fruit, right?)

Applicant Rigoberto Garcia had been working for his employer picking avocados from 35-foot-high avocado trees, using 24-foot ladders for roughly two months, when he suddenly fell from a ladder, sustaining various injuries, including an injury to the head. All aspects of his claim were admitted… except for the psyche claim.  The defendant raised the Labor Code section 3208.3(d) defense to psyche injuries claimed by employees with a less-than 6-month tenure.  This defense has been explored a time or two on this blog as well.

Applicant offered his own testimony at trial on the issue of the defense, claiming that he had never seen any other workers fall from a ladder with this employer, and was not warned at any time that this risk was common.  Defendant offered no evidence.

The workers’ compensation Judge found the injury was sudden and extraordinary, and the defendant filed for reconsideration.  The question that went before the WCAB was whether falling from a 24-foot ladder was a common risk to 35-foot avocado tree pickers, much like burning one’s hand while working as a drycleaner.

A split panel denied reconsideration, with the majority taking issue with defendant’s failure to present any evidence at trial as to the common occurrence of such falls.  In all fairness, the defense failed to carry its burden of proving the existence of gravity – the lawyers no doubt cursed themselves for failing to invest in apple orchards.

But, as all things that go up must come down (and there is nothing extraordinary about that), so, too, with applicant’s luck in the courts.  Defendant petitioned the Court of Appeal for a writ of review, arguing, again, that applicant failed to carry his burden in proving that the mechanism of injury was extraordinary.

The Court of Appeal, having watched the biography of Isaac Newton just the night before, granted defendant’s petition and reversed the WCAB.  The reasoning was, primarily, that common sense dictates that the injury-causing-event experienced by applicant was the exact type of injury one would expect would happen in applicant’s line of work.  Had applicant been attacked by a bear, the “extraordinary” element would have been much easier to prove.

So, the defense is now back to bearing the burden of proving common sense – what kind of injury can we expect from the following job duties…

The Court of Appeal recently handed down its ruling on whether or not an applicant’s claimed migraines are compensable.  Applicant initially proceeding on a claim of injury to the psyche, but understood very quickly that defendant had a fairly solid defense in the good-faith personnel action.  (Labor Code § 3208.3(h).)  In a monumental show of consistency and legitimacy of claim over “gaming the system,” applicant amended his application on the first day of trial to include migraines as a claimed injury.

3208.3(h) does not always work, as my wise and learned readers no doubt recall.  There are a lot of ways applicants attempt to slip around this broad and solid shield – including making regular efforts to use semantics with respect to what caused the injury.  It was complying with the good faith personnel action, not the communication of the action to the employee, after all.

In this case, applicant tried, with considerable success, to argue that his migraines were the result of a psychiatric injury.  Although the psychiatric injury itself, caused by “friction with his supervisor,” may be barred by the defense, the resulting migraines are not.

The workers’ compensation Judge awarded applicant compensation for the migraines, and the Workers’ Compensation Appeals Board denied defendant’s petition for reconsideration.  Most cases end here for a variety of reasons, and your perceptive blogger submits that it is most appropriate to applaud the County of San Bernardino, the employer in this case, for pressing on and petitioning the Court of Appeal for a writ of review.

One can not help but imagine that there was a spike in applicant’s migraines after the Court of Appeal decision came down, and I would therefore advise the Court of Appeal to retain a tort defense attorney, just in case.  No, migraines are not compensable when they are the result of a non-compensable psyche injury.

The Court of Appeal held “seldom are the effects of stress limited to injury to the psyche without resulting physical problems.”  The Court continued, “[i]t would be relatively easy for a claimant to avoid [the bar of 3208.3(h)] by asserting internal problems and symptoms, such as upset stomach, headache and sleeplessness, but not injury to the psyche per se.”

If I had a headache before reading this opinion, it has certainly cleared up – the Court of Appeal has given the defense community another brick to put in its wall.

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.

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.

Applicant Massoud Kaabinejadian sustained a devastating psychiatric injury and was then persecuted by his employer for reporting said injury, which resulted in him courageously and rightly filing a workers’ compensation claim and a Labor Code section 132a petition as well.

He was so righteous and justified, he needed no attorney to plead his case.  To his shock and dismay, and to the shame of California’s workers’ compensation system, his case failed because of one missing and yet totally unnecessary element.  As discovery and trial revealed, Mr. Kaabinejadian’s case lacked that hairline tether connecting his legal theory to the law.

In the case of Kaabinejadian v. Rabobank and Chubb Group of Insurance Companies, applicant was hired as a senior vice president of credit at employer Rabobank.  Applicant’s job was to review loan applications and make recommendations to approve (or not approve) the loans.

After several months of friction in which applicant repeatedly denied loans previously approved by subordinate loan officers, applicant’s superiors decided that it was time to let this less-than-six month employee go.  At the time of this decision, applicant was already scheduled to meet with his superiors at another office location to participate in new-employee interviews.  His superiors decided to terminate his employment at the time of his arrival, rather than have him make a separate trip or to go to his office location.

The Workers’ Compensation Judge first noted that applicant was pleading his psychiatric injury as a cumulative trauma, allegedly incurred from the first day worked (April 3, 2006) to the last day worked (July 5, 2006) and “continuing thereafter.”  Given that this provided less than six months of employment, the WCJ correctly reasoned that applicant’s psyche claim could only proceed if it was the result of a “sudden and extraordinary employment condition,” which a cumulative trauma could not be.

In other words:

–it can’t be a generic psyche injury because applicant was not employed for at least six months, so his claim was barred by Labor Code section 3208.3;

–it couldn’t be “sudden and extraordinary” because it was a cumulative trauma; and

–if it was a specific injury and incorrectly plead as a cumulative trauma, the only specific injury could have been the termination of employment, which the WCJ described as part of “normal, regular or routine exchanges between employees and the employer … [b]assically, [applicant] was particularly upset and offended by the way in which he was terminated.”

Regarding the 132a claim, the WCJ reminded applicant that the burden is on the employee to prove discrimination, and documentation established the pre-existing intent to fire applicant well before any claim of injury was made.

The Workers’ Compensation Appeals Board was no more generous with defendant’s money than the WCJ had been, denying applicant’s petition for reconsideration and incorporating the WCJ’s report.

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.

Applicant, a psychiatric nurse, filed a psyche claim after repeatedly being told by a supervisor (a psychiatric technician) to administer a drug at a more frequent rate than that prescribed by the treating physician.  The disagreement had to do with the meaning of “24 hour period.”  The technician incorrectly believed that a 24-hour period ran from midnight to midnight, rather than an actual 24 hour cycle beginning with the first administration of a drug.

The Workers’ Compensation Judge interpreted applicant’s claim as hurt feelings based on resentment at being under the supervision of a technician, and found applicant had suffered no actual injury.  Applicant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board denied applicant’s petition, adopting the WCJ’s opinion and concluding that defendant’s conduct was a lawful, good-faith personnel action and regarded applicant’s claim as a means of confronting the defendant hospital over the issue of its chain of command.

The Court of Appeals took a different approach to this matter.  In its opinion, the Court annulled the decision of the WCAB and remanded the case to determine if the action of defendant, through its supervising technician, was, indeed, lawful.

Labor Code § 3208.3 governs psyche claims, and subsection (h) provides a defense against those psychiatric injuries substantially caused by “a lawful, nondiscriminatory, good faith personnel action.”

At least in this case, the good faith personnel action defense to a psyche claim turns on the meaning of the word “lawful.”  The psyche technician’s interpretation of “24 hours” seems at odds with the definition used in the practice of medicine, and likely the common sense meaning of the term (imagine a patient, in following the prescription of 1 pill every 24 hours, taking one pill ten minutes before midnight and another twenty minutes later.).

That being said, does such a mistake and deviation from generally accepted practice somehow make the supervisor’s actions anything other than lawful?  At most, this seems like an act of negligence.

Hopefully, lawful and correct will remain two distinct terms and the good-faith personnel defense will be one less chip worse for the wear.  Let’s all keep our eyes open for how this case turns out.

Labor Code § 4600, as part of California’s Workers’ Compensation system, imposes on employers, through self-insuring or through workers’ compensation insurance, to provide injured workers with medical treatment “reasonably required to cure or relieve the injured worker from the effects of” the injury.

But a person can be injured in more ways than one: an industrial shoulder injury and a non-industrial knee injury or an industrially injured respiratory system but non-industrial impairment of the circulatory system.  Does section 4600 turn an industrial injury into a ticket for medical buffet?  All indications point to section 4600 being ripe for abuse in this regard.

A recent panel decision denying reconsideration in the case of Hammerly v. Carrows Restaurant, in which applicant hurt her back.  The injury was accepted, and the agreed medical evaluator recommended psychological treatment to address persistent pain problems following a surgery performed on the injured area.  Applicant testified during her deposition that she had not filed a claim for injury to the psyche, nor did she intend to.

Defendant then argued that psyche treatment is unwarranted without applicant’s meeting the predominant cause standard of Labor Code § 3208.3.  Section 3208.3(b)(1) states that “in order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury.”

Until applicant had met her burden of proof, argued Defendant, she was not entitled to any psychiatric treatment.

The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board were not persuaded by this argument and instead held that section 3208.3 does not limit the application of section 4600.  Because treatment of a non-industrial impairment is necessary to relieve the effects of an industrial injury, the employer must pay for this treatment.

In other words, if an applicant’s non-industrial obesity makes surgery for an industrial injury less safe, applicant is suddenly entitled to a “free” gym membership, or perhaps even an at-home gym.

If applicant’s non-industrial depression makes physical therapy ineffective, applicant becomes entitled to psyche treatment.  Perhaps applicant is even entitled to a ramp on his vacation home.

So long as an applicant’s attorney can persuade a panel qualified medical evaluator or an AME to link the symptoms of a non-industrial injury with an industrial one, applicant becomes entitled to free medical care (not free to the employer, of course, just free to the applicant).

This, of course, translates to more leverage for the applicant to demand a higher settlement by compromise and release, forcing defendants to choose between paying the Danegeld or enduring a scorched Earth campaign.  Neither is appealing, especially when faced with a sympathetic evaluator.

The best way out of this trap is solid advocacy – the attorneys in the Hammerly case put forth a good argument, but sadly it did not work, despite its obvious merit.  The key battles appear to be in the initial selection of a QME and the persuasive depositions that follow.

A recent writ denied case addressed the details of one of the defenses to psyche claims.  Labor Code § 3208.3 provides that psyche claims can not proceed if the employee has been employed less than (not necessarily continuous) six months.  The exception to this is a sudden and extraordinary event.  An earlier blog post covers this exception.

The skinny:  Employment starts with the first day of actual service – not the technical hire date, preparation dates, or anything else.  If Employee is “hired” and begins work the next week, the next week is the first day of employment for purposes of § 3208.3.

In the case of Hamilton v. WCAB, applicant Jill Hamilton was hired on September 14, 2008 to work as a home mortgage assistant, and began work on September 15, 2008, all after filing an online application for the job on August 6, 2008.  Applicant’s last day of work (and earning wages) was on March 12, 2009, and she was taken off the company books on January 25, 2010.

08/06/08– Applies for the job

09/14/08– Official hire date

09/15/08– First day of work

03/12/09– Last day of actual work/earning wages

01/25/10– Removed from company books

As in all things, timing is everything – had applicant started work just a few days earlier, her psyche claim would have survived § 3208.3.

Knowing this, applicant argued that in early September of 2008, she went, at her own expense, to an office in Ventura to pick up a laptop for her training program.  Although she was not compensated for her time, she claimed that this was her first work-related act, so her “employment” commenced sometime (any time that it might please the court) before September 12, 2008.

The Workers’ Compensation Judge found that applicant began working more than six months before March 12, 2008, and therefore was entitled to proceed on her psyche claim.

The Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration, taking a position contrary to the WCJ’s.  Relying on previous case law, the WCAB found that employment begins with actual work, and does not include time off for disability.  Rather, what counts is the “days of actual service” and not those “days of employment where there was no actual performance of services.”

On appeal, applicant’s Petition for Writ of Review was denied.

Before you follow this next tidbit, bear in mind that this is a crazy idea and using it might incur ridicule, discipline, penalties, or even sanctions!  Of course, if you pull this one off, your name will live forever in endless glory.  When signing autographs, don’t forget to tell the fawning fans where you first got the idea for this maneuver.  That being said, let’s walk down “what if” road.

What if we took the language of this opinion one step further.  Averaging six months to 180 days, can we say that vacations, holidays, and weekends don’t count?  Can we argue that applicant is barred against a psyche claim until he or she has worked an actual 180 days (not counting weekends, holidays, etc.?)

After all, if the job is causing a psyche claim, shouldn’t not being on the job slow the progress of the injury?

It’s unlikely to work, but could provide an interesting chance to test the limits of § 3208.3.