WCDefenseCA

Your humble blogger has seen a lot of cop shows in his time.  Law and Order (the original of course) is a particular favorite.  From this “street-smart” education, he has come to believe that law enforcement officers are akin to adjusters and workers’ compensation defense attorneys in that they don’t like to leave files open.  And so, with considerable sadness, my world was turned upside down by the case of Stephen Seavello v. County of San Diego.

Mr. Seavello was employed as a deputy sheriff and sustained injury in the form of skin cancer to his nose in May of 2009.  Fortunately, the cancer was removed in July of 2009 and, to date, there has been no recurrence.  Utilizing an Agreed Medical Evaluator, the parties effectively agreed on a permanent and stationary date and an adjusted 4% permanent disability rating.  Everybody was on board and all was well with the world.  Then came the hitch – applicant claimed his skin cancer as a “progressive insidious disease” (PID), and claimed that the WCAB could extend its jurisdiction indefinitely for this claim.

The Workers’ Compensation Judge agreed, based primarily on the AME’s opinions, and established continuing jurisdiction over the claim.

The go-to case for PIDs is General Foundry Serv. v. Workers’ Compensation Appeals Board.  In General Foundry, the California Supreme Court found that the five-year limit on the WCAB imposed by Labor Code section 5410 does not apply to those injuries which, due to their progressive nature, present the employee with the risk of “being precluded by the statute of limitations from seeking full compensation for his industrial injury.”

In PID cases, jurisdiction is reserved “for a final determination of permanent disability when the employee’s condition is permanent and stationary, or when the employee’s permanent disability is total (100 percent) and further deterioration would be irrelevant for rating purposes.”

In Seavello, the WCJ found that skin cancer should be considered a PID.  However, the WCJ acknowledged that there is considerable division in the medical community as to whether skin cancer qualifies.  Unfortunately, the Agreed Medical Evaluator in this case considered skin cancer to be an PID, leaving the adjuster and defense attorney staring longingly at their shiny red “CLOSED” stamps.

So the good people at the County of San Diego are facing a case where applicant has been rated at 4% for skin cancer to his nose and they would like to close the file.  After all, there are only so many filing cabinets and so many shelves available.  Applicant, on the other hand, would rather keep the case open and see if any skin cancer ever comes back, no matter how far ahead in the future.  No doubt, skin cancer on another part of the body due to sunbathing for years after retiring is a possibility.

What result from the WCAB?  The WCAB granted defendant’s petition for reconsideration (get your “CLOSED” stamps ready!).  Acknowledging that the jurisdiction of the WCAB can be extended for more than five years for PIDs, the panel defined PIDs as those that preclude “a permanent and stationary determination for purposes of rating permanent disability,” citing General Foundry.

Because Mr. Seavello’s condition was found permanent and stationary and an accurate rating was given, the PID exception does not apply.  Furthermore, as the cancer was removed in July 2009, there is even less likelihood of a recurrence, although with cancer one never knows (the AME gave recurrence a 40% chance).

Of particular note in the WCAB’s reasoning was that “[b]ecause it is more likely than not that applicant’s cancer will not recur, his skin condition cannot fairly be described as progressive.”

Applicant’s petition for a writ of review to the Court of Appeal was denied.

Your humble blogger can only hope that somewhere, in Heaven, Lennie Briscoe is nodding in approval.