WCDefenseCA

Alrighty dear readers, here we are back for another day of the glorious swamp of workers’ compensation.  August is almost gone, the kids are back in school, and your humble blogger is at it again, trying to see all benefits denied. 

When I was in law school, one of my very good friends was a failed poker shark.  He would wait eagerly for disbursement of financial aid checks so he could rush to the Capital Card Room Casino in Sacramento and “not gamble” the funds away.  He told me that when one draws an Ace and King as pocket cards, that’s sometimes referred to in the poker shark community as the “Anna Kournikova” because the hand looks great but rarely wins.

Anywho, how excited do we all get when we see the possibility for a statute of limitations defense?  Well, sadly enough, and often enough, the statute of limitations defense fails, as it did in the recent panel decision of Elks v. Sharp Healthcare.  In that case, applicant started developing bilateral wrist symptoms in 2000, and sought treatment for the same.  By 2000 she was already being informed of a diagnosis of carpal tunnel syndrome, and in 2009 her primary care physician told gave her splints and assigned her exercises to do at home.  During a 2014 appointment, her primary care physician advised her of the likely industrial nature of her symptoms.

In June of 2017, some three years after her primary care physician had told her that her symptoms were work related, Ms. Elks completed her employer’s accident reporting and treatment form, alleging industrial injury to her bilateral wrists and hands. 

Just to pause from the facts for a moment, dear readers, if an applicant waits three years to file a workers’ compensation claim, how excited are you for a statute of limitations defense?  Do you see the Ace-King combo peeking out of your pocket poker cards?

Anywho, defendant asserted a variety of defenses, including based on Labor Code section 5400 for failure to report the claim within 30 days, and Labor Code section 5405 for failure to file a claim within one year of injury.  But, as prophesized by my failed card shark classmate, neither one of these was a winner, no matter how good they looked.

The WCJ and WCAB disposed of the argument based on Labor Code section 5400 because, in the opinion of the WCAB, defendant failed to show it was “misled or prejudiced by such failure” to report the claim within 30 days of knowledge, as required by section 5403.  Well, what would have constituted prejudice?  Your humble blogger hasn’t found a lot of cases where failure to give notice has been found by the WCAB to prejudice the defendant.  Hypothetically speaking though, if there is medical evidence of a condition getting progressively worse, then an employer’s knowledge of potential work restrictions could avoid further aggravation of the condition.  Failure to report the injury deprives defendant of the ability to investigate and offer modified work, no?

Anywho, how did the WCAB get to rejecting the 1-year statute of limitations defense under Labor Code section 5405?  Well, the “date of injury” for a cumulative trauma is determined by Labor Code section 5412 – where disability and knowledge of industrial causation have both occurred.   So we had knowledge of industrial causation as early as 2014… but what about disability?  After all, if defendant can show disability that occurred at least a year before the claim was filed, the statute of limitations should bar the claim!

Well, disability, as per the Rodarte case means compensable disability – whether temporary or permanent.  In this case, applicant missed no time from work and had no permanent work restrictions or assigned permanent disability, which the WCAB used as a basis for rejecting the defense.

So, what’s the take away from this?  If you spot a potential statute of limitations defense, your efforts don’t stop at issuing a denial.  Discovery is necessary to identify permanent work restrictions, lost time from work, anything that might give rise to potentially compensable disability.  And, of course, there is the universal search for knowledge… well knowledge of industrial causation at least.

In other words dear readers, we on the defense side get no days off.  It’s the Sisyphus treatment for us.

Till next time…

Happy Wednesday, dear readers!

Your humble blogger is here for you, as always, with a blog post on yet another one of those favorite topics… utilization review!  The case at hand is Holguin v. First United Methodist Church, a panel decision.

The basic facts are these.  Applicant’s PTP on an accepted case submitted an RFA for a Functional Restoration Program which UR non-certified.  Less than a month after the original RFA, the PTP submitted a second RFA noting “change in material facts.”  It appears that no UR report issued for this second RFA.

However, in the section provided on the RFA to document the material change in facts (page 2 reflects: “include documentation supporting your claim”, the PTP apparently did NOT provide documentation of a change in material facts, but argued with the reasoning of the original UR determination.  

After trial, the trial judge issued an Order that applicant was entitled to the functional restoration program.

On appeal, the WCAB panel first noted that Labor Code section 4610(k) provides that a UR determination stands for 12 months unless “the further recommendation is supported by a documented change in the facts material to the basis of the [UR] decision.”  Since the PTP failed to provide documentation of changes in material facts, the WCAB opined that the original UR decision stood and no further action or response was required by the defendant.

How many times have you seen the exact same thing happen?  “Resubmission – Change in Material Facts” is checked but no change in facts is provided with the RFA?  Your humble blogger sees it a plenty.  Of course, it’s always safer to run UR again but sometimes things slip through the cracks.

The Holguin case is not Earth-shattering and doesn’t change the landscape for us dramatically, but it is an excellent reminder of a potential defense if UR fails to catch every single RFA.

Happy Monday, dear readers!

You know, your humble blogger is truly blessed with a wonderful readership.  After my post some time ago about the matter of Lopez v. Prell Restaurant Group, in which the WCAB ordered the trial judge to develop the record on an AOE/COE issue. 

Well, since then, your humble blogger has been graced by several e-mails and messages: some venting with frustration and some offering case law in answer.  A couple even provided relevant case law to counter such a move.

Well, I thought, I might share some of that authority with my beloved readers.  After all, sharing is caring, and who cares more than your humble blogger? So buckle in, dear readers, this is going to be a long one!

But first, a bit of background: as articulated in the Lopez opinion, even if the parties agree to close discovery and submit a matter for decision, the WCAB can order the record “developed” if, based on the current record, it cannot meet its obligation to render decisions “supported by substantial evidence in light of the entire record” as required by Labor Code section 5952(d).   This is also based on LC 5701 and also LC 5906.

For example, if the issue is extent of permanent disability, and the record contains no medical reports that constitute substantial medical evidence, the WCAB might determine that development of the record is necessary to obtain a report that does constitute substantial medical evidence and upon which a ruling can be made.

But what about in cases of AOE/COE dispute?  As argued in the earlier post, if there is no substantial medical evidence in the record, and compensability is contested, doesn’t an order to develop the record shift the burden  onto the defense to prove that the injury is non-industrial, rather than placing the burden on applicant to prove that it is?

One panel decision, Kabala v. City of Alhambra Fire Department, issued in 2010, dealt with a similar issue.  The trial judge had issued an Order Vacating Submission and Disposition to Complete the Medical Record, ordering the parties to either depose the QME or agree to an AME.  Defendant sought removal, arguing that since “applicant took no steps to complete the record prior to trial,” discovery should close as per Labor Code section 5502.  One of the issues for trial was, of course, AOE/COE. 

The panel granted removal, reasoning that “[a]pplicant holds the affirmative of proving that the injury arose out of and occurred in the course of his employment, so he has the burden of proof as to that issue.” 

Gloria Rivas v. Posada Whittier, another 2010 panel decision, likewise reversed a WCJ for reopening the record of development: “We concluded that it was error to reopen the record for additional discovery after applicant had stipulated that she was ready to try the issue of injury to her psyche… We therefore decided the issue of injury to the psyche adversely to applicant based upon her failure to meet her burden of proof.”

In Rivas, applicant’s argument that discovery should remain open because the trial was set from a priority conference rather than a mandatory settlement conference was not persuasive: “contrary to her understanding of workers’ compensation procedure, once a party stipulates to being prepared for trial, discovery is closed regardless whether the case came up on the regular calendar or the priority calendar.”

A very big thanks to S.G. for sending in those opinions!

Nor are these opinions confined to the panels, which everyone but the immediate parties in a case appear free to disregard as it suits them.  The Court of Appeal in San Bernardino Community Hospital v. WCAB/McKernan (1999) reached a similar conclusion.  The facts in this matter were very close to the panel decisions cited above: applicant went to trial on a denied claim and then sought an order to develop the record when she could not carry her burden of proof.

After failing to appear for her trial, applicant attended the continued trial date and wanted to offer testimony from a witness not previously disclosed and enter reports not previously listed.  The trial judge allowed this over defendant’s objection.  The WCJ found the injury compensable and the appeals board denied reconsideration.  The Court of Appeal, however, reversed.

Citing Labor Code section 5502(d)(3), the COA reasoned that relying on section 5701 or 5906 to negate the close of discovery, or to all discovery to reopen so long as there was no “prejudice” to defendant (by allowing defendant time to obtain rebuttal) would require a reading of 5502(d)(3) as “toothless” and without meaning.

The Court of Appeals decision in Tellers Transport v. WCAB/Zuniga reached the same conclusion in 2001, reversing the WCAB’s order to admit reports not listed on the pre-trial conference statement after the trial Judge issue a “take nothing” order.  Discovery remained closed and applicant failed to carry the burden of proof on AOE/COE. 

An equally big thanks to R.C. for sending those cases in!

The authority is there and, at least to some extent, should be binding on the WCAB in light of the Court of Appeal decisions.  There should be no basis to “develop the record” on an AOE/COE trial.  It is applicant’s burden to prove by a preponderance of the evidence that there is a compensable industrial injury.  As the fishermen in Odessa, Ukraine say: one must fish or cut bait.  Applicants should either “develop the record” during the discovery phase and either settle or proceed to trial.  At least, that’s your humble blogger’s take on it.