WCDefenseCA

So, dear readers, your humble blogger has a question for you – when an applicant undergoes a medical procedure meant to cure or relieve him (or her) of the effects of his admitted industrial injury, but fails to go through the treatment authorization procedures laid out in the Labor Code and Code of Regulations, is the employer/insurer liable for the temporary disability period resulting from said procedure?

That was the issue in the somewhat recent (there are but so many days in a week, after all, dear readers – one cannot get to all the cases and stories of note!) case of Michael Moser  v. Valli Construction.  Applicant underwent spinal surgery, and his treating physicians anticipated a permanent and stationary date one year after the surgery.  However, applicant became convinced that the metal implant was causing an allergic reaction (as had been the case with two unrelated metal implants in his foot and leg as part of treatment for past injuries).

He complained of constant and extreme pain, and insisted on its removal.

Without seeking authorization from defendant for the removal surgery, applicant underwent the procedure less than a year from his original operation, and had the metal removed.  He then claimed temporary disability benefits while he was recovering from the second surgery.

Naturally, defendant had a problem with this.

Denying liability for temporary disability after the second surgery, defendant rolled up its proverbial sleeves and took it to the street… before taking it to the WCAB, and, upon finding a workers’ compensation Judge less than persuaded by defendant’s position, to the commissioners on reconsideration.

Unfortunately, the WCAB ruled that temporary disability was due at least until the anticipated date of permanent and stationary status as per the initial surgery.  But as for the rest, the defendant was still on the hook.  Why?

Well, defendant correctly pointed out that Labor Code section 4062(b) specifically shields defendants from liability for TTD resulting from a procedure performed prior to the completion of the second opinion process.  But applicant’s argument pointed instead to California Code of Regulations section 9788.01(L)(4), which specifically excluded from the definition of “spinal surgery” any procedure which is required because of bona fide emergency.

The WCAB held that, because the medical evidence supported applicant’s position that he was, in fact, facing a bona fide emergency situation (as defined by Labor Code section 4610(g)(2); “the employee’s condition is such that the employee faces an imminent and serious threat to his or her health…”) the shield of section 4062(b) does not apply.

So, the employer was on the hook for the temporary disability payments until applicant recovered from his unauthorized surgery.

Your humble blogger understands that emergency situations arise and the legendary swiftness of workers’ compensation procedures is not conductive to truly necessary treatment which may be required from time to time.  But… here’s what your humble blogger doesn’t understand about this case:

• the applicant was aware of the metal implants he was receiving in his spine prior to the first surgery, and was aware that he had reacted in exactly the same way to two prior metal implants, and that his symptoms resolved after those two prior metal implants had been removed;
• He first began complaining of this allergic reaction almost two months after his surgery;
• He was evaluated for the second surgery almost ten months after his first surgery, and underwent the surgery more than a week later.

Why was defendant kept in the dark about this?  Applicant finally underwent the second procedure ten months after the first – ample time for the spinal surgery utilization review and second opinion process to be undertaken if not completed.  What’s more, applicant was well aware of how he reacted to metal implants, but had not informed his treating physician of the fact.

Your humble blogger submits to you, dear readers, that applicant himself created the “emergency,” and that if he would have (1) told his treating physicians of his metal allergy; or (2) immediately began the removal surgery approval process upon feeling the same symptoms he had felt after his previous two metal implants, defendant would have rightfully avoided additional liability for temporary disability.

In all likelihood, there would have been a swift removal procedure and applicant would have become permanent and stationary on or before the date previously predicted as one year from his initial spine surgery.

Although the WCAB reached the correct conclusion in terms of legal liability, there should be some correction for self-created emergencies.

Wouldn’t an employer who knowingly and intentionally exposed a worker to a substance which the employer knows will cause a severe allergy be liable for Serious and Willful misconduct penalties?  Should an employee face a reduction in benefits for the same?

The California Supreme Court recently issued an opinion addressing the extent of liability parties have to the employees of hired contractors.

Jack hires Jill Inc. to have his lawns mowed.  When Jill’s employee hurts himself on Jack’s lawn, is Jack liable?  What if Jack had violated Occupational Safety and Health Administration (OSHA) guidelines on how razor-sharp he can keep his blades of grass?  What if Jack’s own employee, Albert, hurt himself in the same way as Jill’s employee and received workers’ compensation benefits?

The skinny:  a party owes no duty to the employees of its contractors.  Even if two workers get hurt in the same event, the big boss is on the hook only for his own worker, not the employee of the contractor.

US Airways hired a contractor to maintain and operate a conveyor at San Francisco International Airport.  One of the contractor’s employees injured his arm inspecting the conveyor.  As it turns out, the conveyor “lacked certain safety guards required by applicable regulations.”  Fortunately, it wasn’t a back sprain while gently removing luggage from the conveyor.

The Court of Appeals held that the violation of an OSHA safety regulation imposes liability upon US Airways.  According to the Court of Appeals, observing OSHA safety regulations is a non-delegable duty.

The Supreme Court reversed, relying on its opinion in Privette v. Superior Court.  The Court re-affirmed the rule that a hirer owes no duty to the employees of the contractor.

Will this apply to the Workers’ Comp world?  Time will tell how Workers’ Compensation Judges respond to this ruling.  But I have a feeling that the world of Serious and Willful defense will never be the same.

Good Monday to you, dear readers!  Are you still reeling from the daylight savings time change (which, in part, explains the lateness of today’s blog post)?  Your humble blogger is not a big fan of change… let alone time changes that upset routines.

Anywho, I have a rather grim topic for my beloved readers today – suicide.  Now, as we know, Labor Code section 3600(a)(6) bars recovery for any claim where an employee has “willfully and deliberately caused his or her own death.”

But, California is not monolithic in any sense.  We have areas of the State focused on agriculture and other areas focused on future technology and space travel, allowing Californians to grown ancient crops on “smart” soil.  We have Health and Safety Code section 11362.785(d) which specifically holds that health insurance will not be required to reimburse costs associated with the use of medical marijuana, and we also have a medical marijuana program, allowing Californians to take a puff of green weeds while smoking away their green bills.

Starting June 9, 2016, we will have yet another such contradiction: the End of Life Option Act will allow an adult with a terminal disease (likely to result in death within six months), to be provided with a lethal overdose of drugs if he or she wishes to end his or her life.  Just think of the implications for workers’ compensation:

Would the workers’ compensation insurer be expected to pay for this lethal dose?  After all, if the symptoms of an industrial injury are such that they are causing excruciating pain and suffering, wouldn’t the medical overdose “cure or relieve from effects of” the injury? (Labor Code section 4600(a)).

Would the employee’s dependents (or the death without dependents unit) be entitled to death benefits?  When the effects of an industrial injury causes a psychiatric condition, which ultimately results in an accidental overdose or intentional suicide, the death has been held compensable even in the face of section 3600.  What happens when the symptoms resulting from an industrial injury lead the injured worker to contemplate suicide?

What happens when the condition is the result of a synergistic effect between an industrial injury and an on-industrial one?

One of the requirements of the act is that a physician certify that the condition is likely to be terminal within the next six months.  But is it really unrealistic to think that a physician will certify something as terminal even when it’s not, especially when the likely result of the condition is a lifetime of pain and suffering?

There are physicians now that gleefully wink and nod and put injured workers on temporary disability or fudge the causation analysis because of some misguided self-perception of an “advocate” or to secure future referrals from the applicants’ bar.  There are even doctors, some might describe aptly as evil, that refer uneducated injured workers to unnecessary spinal surgeries, to be maimed.  Is it really beyond the scope of probability that there are compassionate doctors out there, ready to falsely certify a condition as terminal at the request of suffering patients?

Section 443.13(a)(2) of the Act holds that “death resulting from the self-administering of an aid-in-dying drug is not suicide, and therefore health and insurance coverage shall not be exempted on that basis” but 3600 does not use the word suicide, only that the employee “willfully and deliberately caused his or her own death.”

Needless to say, this law is a serious one, and will offer serious implications in those grim cases where it intertwines with workers’ compensation.  As the saying goes, dear readers, send money, guns, and bloggers lawyers.

I am a partner with Tobin Lucks LLP practicing in San Francisco Bay Area. As a certified specialist in Workers’ Compensation Law, my practice focuses on

workers compensation defense, which includes case-in-chief defense, lien

claim resolution, 132a/workers’ compensation discrimination, and serious and

willful claims.

WordPress is an excellent tool for the facility of discussions on the emerging issues

in workers’ compensation and the different approaches under development to

improve the efficiency and justice of California’s workers’ compensation system.

If you have any thoughts or questions, please drop me a line at

ggrinberg [at] tobinlucks.com or you can reach me at 818-226-3400.