WCDefenseCA

Well, my beloved readers, we made it to another Wednesday.  I know, I know, you woke up this morning wondering if your humble blogger was going to hit you with a reference to Wednesday Addams, or perhaps a camel for hump day?  But such trivialities are not appropriate for such a serious, and august blog, be it ever so humble.

So, instead I will just make a casual reference to Woden and leave it at that. 

But you’re clearly not reading this blog for an etymology lesson.  You’re reading it for updates on California workers’ compensation world (either that or you noticed that I have disabled and removed the “unsubscribe” button so now you’re stuck with me).  So, let’s get to it!

Today’s post is on the split panel decision Hernandez v. Ventura Post Acute.  The WCJ relied on the PQME’s opinion to award 45% PD after applicant sustained a fall.  However, applicant sought reconsideration, demanding the WCAB instead find her permanently and totally disabled based on an Ogilvie rebuttal of the PDRS.

Applicant offered evidence from her vocational rehabilitation expert that she was not amenable to rehabilitation and totally precluded from the workforce.  The WCAB majority granted applicant’s petition and substituted a new award for permanent total disability.

The majority was persuaded by the analysis offered by applicant’s vocational rehabilitation expert as to the work restrictions.  The way those restrictions were interpreted, applicant argued, there was no feasible job available – even a sedentary one.  For example, the VR expert interpreted the QME’s prohibition on bending and stooping as precluding any job, even sedentary, that would require the occasional bending to reach a low filing cabinet or pick up a dropped item.

Even though the QME assigned apportionment, 67% non-industrial, the WCJ rejected that opinion at trial, so the VR expert’s opinion was not challenged on apportionment grounds either.

The dissenting opinion pointed out that a preclusion from bending, stooping, or twisting referred to precluding any job that required these activities, as opposed to the occasional and incidental movements along those lines.

Just imagine how much whiplash this case must have caused?  To go from a PQME report that rated 15% PD ($14,645.00) after apportionment on its face to having the apportionment rejected at trial and facing an award for 45% PD ($68,440.00) to having the WCAB issue a permanent total disability award…

Now your humble blogger has no inside knowledge about this case, and it’s entirely possible that the following was explored, but generally speaking, there are a few things defendants can consider.  For starters, if the QME is offering apportionment of permanent disability, and applicant is seeking VR evidence, one can ask the QME if the specific work restrictions, rather than just the permanent disability, are caused in part by non-industrial or prior-industrial causes.

Furthermore, if defendants feel that the restrictions offered by the QME are being exaggerated or misinterpreted by the VR experts, a supplemental report can be sought from the QME to comment on the VR report and ask if the interpretations of the QME’s restrictions are correct or if they need to be rephrased. 

Neither of these options were discussed in the WCAB’s majority opinion, nor in the dissent, so perhaps they were attempted and came to naught.  But, in any case, this opinion should make us defendants mindful of how quickly a case can decay from a 15% PD rating to a permanent and total disability award.

What are your thoughts, dear readers?

Welp, it’s Wednesday, dear readers, and your humble blogger is here for you with yet another blog post.

Fortunately, this post is good news – another successful decision reached thanks to the efforts of the attorneys at State Compensation Insurance Fund!

Before we get into the meat of the issue, your humble blogger would like to voice an additional objection to this whole “adding instead of combining” disabilities trend.   When your humble blogger was just knee high to a grass hoper, I was full of opportunity and promise, just like everyone else.  Potential was a plenty.  It seems truly unfair now that the WCAB seems to be inclined to impose upon us the very thing we hoped to avoid by going to law school: math!

Accordingly, your humbleblogger hopes we can return to the magic of the combined values chart rather than the pain of the adding of impairments.  Nevertheless, on to the panel opinion!

The panel decision is Martinez v. Sousa Tire Sevice, insured by SCIF.  Applicant’s impairments on an accepted case were rated as 77% PD for orthopedic injuries, 62% for CRPS, and another 26% PD for psychiatric disability.  While the orthopedic and CRPS were combined to yield 91% PD, the psychiatric impairment was added to reach 100%.  Had the 26% PD for the psyche been combined with the 91% for the orthopedic and CRPS, of course, the result would have been 98%.  Now, you might be thinking, dear reader, that there isn’t much difference between 98% and 100%, but your humble blogger could not possibly disagree with you more.  While 100% includes a life pension at the TD rate, 98% is significantly less, or at least it can be depending on the circumstances.

Anywho, the psychiatric treating physician wrote a report expressing support for adding the psychiatric impairment to the orthopedic impairments, “given tat the psychiatric impairment does not overlap with his orthopedic impairment.”  The panel rejected this opinion.  Distinguishing the Kite decision, the panel noted that in Kite, the two body parts being “added” rather than combined were both within the reporting physician’s expertise, and the two impairments caused a “synergistic” effect, justifying the addition.  The panel continued: “[i]n contrast, here one specialist is suggesting that we add impairments found by her in her own specialty to impairments in a completely different body system found by a different specialist.”  The case was sent down to the trial level for a new finding of PD and attorney fees.

Does this reasoning sound familiar? It will to my most learned and diligent readers.  This was the same logic used to rejecting adding impairments in the panel decision of Bradley v. State of California. 

Certainly good news for the employer in this case, but on a broader scale this should encourage us to challenge those Kite ratings and not shy away from litigating the issues. 

Until next time…

Happy Wednesday, dear readers!

Your humble blogger is big enough to admit that he’s an odd duck.  For example, as his classmates took nothing but delight in flying kites, your humble blogger was not one of those boys that enjoyed such things.  In fact, nothing made me happier, while walking on San Francisco’s Ocean Beach listening to “Smooth Jazz KKSF” to see a kite go down.  “That’s what you get” I would think to myself.  I already admitted to being an odd duck, what more do you want, dear readers?

Anywho, as I grew up, my listening tastes changed, but the delight in seeing a kite crash and break apart is still there.  So, with that little bit of glee, I offer you the panel decision of Bradley v. State of California.  Applicant, a corrections officer, sought reconsideration of a WCJ’s ruling that he sustained 90% PD (85% orthopedic, 23% skin disability, and 17% hearing disability) and instead argued that he was permanently totally disabled as the WCJ should have added his disability rather than combined it.

Applicant argued that the various conditions do not overlap, and thus should not be combined but added.  The WCAB rejected this claim, however.  Citing the WCAB’s decision in Kite, this panel articulated the rule that “adding, rather than combining, two different impairments better reflected a worker’s impairment when substantial medical evidence supported the notion that the two impairments in effect combined and the resultant impairment was more than the sum of the two impairments.” 

Of particular importance to the Bradley panel was the fact that in Kite, the evaluator wanted to add body parts/conditions that were all within that evaluator’s area of expertise.

By contrast, Mr. Bradley’s evaluators were all in different specialties (orthopedics, skin disability, and hearing) and so any opinion that the conditions should be added rather than combined would be outside of any of the physicians area of expertise.

Of interest, based on the opinions of the skin QME, the WCAB granted reconsideration to allow applicant to plead a separate CT for skin cancer because the QME opined the causation was different for skin cancer as opposed to the orthopedic and hearing loss claims.

So, what can we take away from this? 

The holding in Bradley reaffirms that in order to do a Kite rating, the two conditions to be added rather than combined most both be in the expertise of a single medical-legal evaluator. 

Further, to the extent that practitioners can parse out causation, defendants may be able to force a separate cumulative trauma.  So, if a CT is claimed for three body parts or systems over the same period of time (as an example, orthopedic knee injury, lung cancer, and skin irritation from cleaning chemicals), if the causation is different on the three systems, perhaps applicant could find himself with three awards of 20% each rather than a combined award of 49% PD.

All in all, the Bradley decision is not a bad one to keep within reach for reference, no?

Now, if you’ll excuse me, I’m going to make some children cry but cutting the lines to their kites (in honor of Bradley).  Till Friday, dear readers!