WCDefenseCA

As some of my beloved readers may know, your humble blogger is an escapee from the Soviet Union.  Being such makes one a relative expert in Propaganda.  Thus, I can tell you two things that you can take to the proverbial bank on this subject:

1. A real propaganda is when a British person takes a good look at something (syntax: “Be a good chap and take a proper gander at my tea collection.  Cheerio!”);
2. In California workers’ compensation law, what is good for the goose is not necessarily good for the gander.

Admittedly, that set-up for a dad joke was pretty long, not unlike the neck of a goose since we’re on the subject, but I hope you’ll bear with me while we get to the point your humble blogger is trying to make.  In a recent panel decision, the WCAB relied on the fact that applicant had the guidance of an attorney to determine that he waited too long to pursue SIBTF benefits.

The case is that of Roberts v. Perkins and Will Group.  Applicant had a case from 2007 which resolved via stipulated award for 41% PD in 2012.  He had another stipulated award for a 2009 CT injury which resulted in a separate stipulated award of 53%, also in 2012.  He then waited until 2019 to file an application for Subsequent Injuries Benefit Trust Fund benefits. 

The parties proceeded to trial on whether applicant was permanently totally disabled and whether the statute of limitations barred his SIBTF claim.  Applicant was represented for his original two claims but testified at trial that he did not become aware of the existence of SIBTF until late 2018.  The trial judge found that “applicant did not file his claim against SIBTF within a reasonable time from when he knew or should have known that he had a probable claim, and that his claim was thus barred as untimely.”   On appeal, applicant argued that the WCJ erred in “taking applicant’s representation into account” in concluding applicant should have known about his eligibility for SIBTF benefits.

In affirming the WCJ’s finding, the WCAB panel reasoned that applicant had 5 years from the date of his second injury to file for SIBTF benefits, as the original injury was already more than 35% PD.  But, what’s more important to your humble blogger (as a defense attorney, I rarely if ever have to address SIBTF issues), is that the WCAB found no error in imputing knowledge of SIBTF claims to applicant because applicant was represented.

Well, if such logic is good for the goose, why not share that sauce with the rest of the flock?

When an applicant retains counsel, knowledge of that attorney SHOULD be imputed to the injured worker, but not just about SIBTF: about cumulative traumas as well.  Any applicant attorney who claims to not know that cumulative traumas exist or constitute potential claims should hang up his or her spurs, and turn in his or her State Bar card.  Of course, the AA Bar is intimately familiar with cumulative trauma claims.

If that’s the case, why does so much of the WCAB resist settlements for specific injuries that include resolution of potential but unclaimed cumulative traumas through that date?  Why doesn’t the date of injury for any subsequently filed CTs tie into when applicant became represented?

Knowledge of what a CT is should absolutely be imputed to applicants upon becoming represented, whether that representation is for a specific injury or a cumulative trauma.  And if there are applicant attorneys out there that really are keeping the existence of CT claims a secret from their clients, shouldn’t that be an issue between those attorneys and the State Bar?

Just for context, as you curse your humble blogger for his harsh demands for applicants and their attorneys, your humble blogger asks you – what is necessary for an applicant to claim a CT?  Does the applicant first have to get a report from a physician confirming that there is, in fact, an industrial CT?  Or is it enough for applicants to simply make the allegation?  If there is no requirement to first obtain a medical report of this sort, then why is there this fantasy that applicants could not possibly have known that there was a CT until there was such a medical report?

Your humble blogger would love to see the same reasoning as described in Roberts applied to cumulative traumas and the questions of date of injury and the statute of limitations defense.  If it were so done, perhaps we would see fewer cases of the applicant bar skirting the post-termination defense by alleging the very same injury that would otherwise be barred by alleging a CT instead.  Perhaps we would finally see world peace and all the ills that plague the human experience vanish before our eyes.  Too much, dear readers?

Can you feel it, dear readers?  Just around the corner is your humble blogger’s favorite holiday of all – Thanksgiving!  The gentle gobble-gobble of turkeys, the delicious pumpkin pies, the deep, soft sleep enjoyed only by the just except after the Thanksgiving meal, when that slumber is enjoyed by all… it’s wonderful!

Well, before you hop on the literal gravy train let your humble blogger, especially since Chanukah and Christmas are coming up soon, your humble blogger thought he’d share another one of the items on his workers’ compensation wish list.

Since it seems that if we eliminated cumulative traumas in California altogether, roughly half the industry would be without a job, how about something a bit more realistic – CT reform.

The frustrating thing about cumulative traumas is that the standard for a CT is so low, and the deterioration of the human body is so universal, the California CT has become a catch-all.  Is the claim barred by a post-termination defense? That’s fine, just plead it as a CT.  Did applicant not get the QME specialty she wanted?  That’s fine, just plead it as a CT and get a new panel. 

Some applicant attorneys even claim that the companion CT entitles applicant to an additional SJDB voucher, or additional TD for non-overlapping periods.  Absurd, I know, but still allegations to contend with and waste precious defense attorney and WCAB time on.

So how would your humble blogger reform CTs in California, if not eliminating them altogether?  Simple.  Raise the bar on AOE/COE for cumulative trauma claims to match that of psyche claims: predominant cause.

If there is a diagnosis which applicant alleges is industrial, then the burden should be on applicant to prove, by a preponderance of the evidence, that the predominant cause of the cumulative trauma is predominantly caused, that is, more than 50%, by actual events of employment.

Now, I’m sure the applicant attorneys are demanding I turn in my California Bar card and the lien claimants are clutching their pearls and seething at this idea, but the logic is sound and follows the exact same logic as that which guided a raised bar for psyche claims. 

CT claims can be used to retaliate against employers and are, for the most part, maneuvers around statutory defenses. 

They are also so entangled with the normal decline of the human body that they have turned employers and the workers’ compensation system into universal healthcare providers.  Any affliction that affects the human body, if it was in the slightest way accelerated while applicant happened to be working, becomes a CT claim.

In your humble blogger’s estimation, that presents a reasonable compromise between the absurdity that is the cumulative trauma theory now, and the secret desire of every defendant in California to have CTs banned altogether.  

But what about you, dear reader?  What do you think?