What happens when federal immigration laws overlap with California workers’ compensation?  A blog post, that’s what!  Let’s say an injured worker is evaluated by her physician who provides work restrictions.  The physician notes that, if the employer can not find work for applicant within his prescribed restrictions, the applicant is to be considered temporarily totally disabled.

The employer has a job waiting for applicant well within the doctor’s restrictions, but then comes the hiccup – applicant is an illegal immigrant and has no documentation of her right to work in the United States.

At trial the applicant’s attorney argues that no work is available for applicant, so she is entitled to TTD.  Defendant, of course, argues that it is ready and willing, but barred by federal law and applicant’s own actions in refusing to comply with United States immigration laws.

These are the facts of Sarahi Cubedo v. Leemar Enterprises, Inc. (a 2011 panel decision).  The Cubedo panel reversed the Workers’ Compensation Judge, ruling that if “defendant made a legitimate offer of modified work that applicant could not accept solely because of her residency status, defendant is not alternatively liable for temporary total disability benefits.”

In so ruling, the Workers’ Compensation Appeals Board relied on the case of Del Taco v. Workers’ Compensation Appeals Board (Jorge Gutierrez), which held that, with regards to entitlement to vocational rehabilitation services, if immigration status is the only bar to an applicant’s return to work, the injured worker is not entitled to vocational rehabilitation.

Once in a while, your humble blogger likes to report on the further developments of Labor Code section 4658(d).  If a worker’s immigration status prevents him or her from accepting an employer’s timely offer to return to the same, modified or original duty, will the employer still receive the benefit of a 15% decrease in permanent disability payments?  Or will the section just be held inapplicable?

If you’ve dealt with this and have a story to tell, don’t hesitate to drop your ever-attentive blogger a line: gregory@grinberglawoffice.com.

Would you have any concerns at all if your driver, pilot, or surgeon had tested “presumptive positive” for amphetamine in his or her blood just after commencing services?  “Ladies and gentlemen, we will be cruising at X thousand feet, although there is a storm in the landing area, I feel surprisingly confident because of the presumptive positive amount of amphetamine in my blood.”  Not a particularly encouraging thought.

Applicant Bart J. Johnson was injured while working for Beyette’s Tree Care (uninsured), rendering him a paraplegic.  While in the emergency room, a blood test came back presumptively positive for the presence of amphetamine.  Defendant asserted the intoxication defense of Labor Code section 3600(a)(4), but to no avail.

The Workers’ Compensation Judge concluded that the single report did not prove that applicant was intoxicated at the time of his injury, let alone that intoxication was a substantial cause in his injury.  The Workers’ Compensation Appeals Board and the Court of Appeals concurred.

If you would like to read the Order Denying Reconsideration or the Report and Recommendation of the WCJ, the Lexis citation is 2011 Cal. Wrk. Comp. P.D. Lexis 378, or please e-mail me for a copy: gregory@grinberglawoffice.com.

How is a defendant to prove its case in a situation such as this.  The amphetamine screen came back presumptively positive.  Although this is not a conclusive test, it should at least shift the burden to applicant to show that he was not under the influence of any illegal substance – after all, “presumptively positive” means more likely than not, also known as a preponderance of the evidence.

Although the defense could have provided a foreman witness to testify as to applicant’s behavior on that fateful day, what would the foreman testify to?  Your typical man-on-the-street, foreman, and (without a doubt) most charismatic and eloquent blogger all have experience with alcohol and its visible effects.  Is every employer and supervisor to be charged with expert knowledge in the effects of amphetamine use and its symptoms?

Even if the defense could have satisfied the intoxication defense requirement of showing intoxication, causation would have been another issue.  Could the defendant effectively prove that the injury was sustained as a result of the intoxication?  According to the WCJ, the answer is “no.”

In any case, your captain would like to use his first drink to toast to the safety of our flight.  Cheers!

The warmest greetings of all the season to my dear readers.  Your plump and jolly blogger wishes you all the best!

WCDefenseCA will be back in action on Tuesday, December 27th.

In the case of County of Mendocino v. Workers’ Compensation Appeals Board, the Court of Appeal denied a petition for writ of review because of a procedural error – it appears that the appellant failed to include exhibits pursuant to the California Rules of Court.

The rule, in pertinent part, reads:

“(1)A petition to review an order, award, or decision of the Workers’ Compensation Appeals Board must include:

(A)The order, award, or decision to be reviewed; and

(B)The workers’ compensation judge’s minutes of hearing and summary of evidence, findings and opinion on decision, and report and recommendation on the petition for reconsideration.”

Even in our time of electronic transmittals, one-click file-sharing, and EAMS connectivity, it appears that exhibits must still be attached to appeals.

From what your humble blogger can gather, the merits of the appeal were never reached.

A pessimist will tell you that circumstances couldn’t possibly be any worse, and an optimist will tell you that they most certainly could.  On Thanksgiving day, even your humble cynic, your loyal pessimist blogger, knows it could all be worse.  Though times can be rough, skies cloudy, and the future uncertain, we all have much to still be thankful for.

So enjoy the video, remember to say thanks, and have a great Thanksgiving!

A recent case (Sompo Japan Insurance Company of America v. Workers’ Compensation Appeals Board) popped up on my radar as an employer tried (and failed) to contract around workers’ compensation benefits.

Gerald Lark was employed by Canon Business Solutions when he allegedly sustained an injury to his back, left shoulder, psyche and internal system.  A few days after the date of injury, applicant entered into a “severance agreement and general release,” by which the employer would pay applicant 44 weeks of wages.  When applicant was released to work roughly a month after his date of injury, there was no job to return to.

Applicant filed a declaration of readiness to proceed to an expedited hearing, claiming he was owed temporary disability.  The Workers’ Compensation Judge concluded that applicant was entitled to ongoing temporary disability payments and that defendant was entitled to no offset or credit for the 44 weeks of severance already paid.

The Workers’ Compensation Appeals Board denied defendant’s petition for reconsideration, adopting the WCJ’s report and recommendation.  The WCJ argued, in his report and recommendation, that reconsideration should be denied because the severance agreement was not reviewed by a Workers’ Compensation Judge.

But… applicant got the money.

Temporary disability is paid out at 2/3rd of an applicant’s income, for up to two years.  Here, applicant is receiving his entire paycheck for 44 weeks (or 57 weeks of temporary disability), presumably all at once.

Yet, defendant is somehow not entitled to credit for money already paid.  Does it really matter what we call it?  Severance, temporary disability, get-well-soon fund, it shouldn’t matter.  Applicant received a benefit from his employer and, pocketing the money, now wants more.

Sadly, the Court of Appeal denied defendant’s petition for a writ of review, and thus declined to correct this injustice to an employer.