The King of Sweden was out hunting, hoping to bag a big moose.  As he walks through the woods with his servant, he comes to a clearing where he sees another hunter.  Upon seeing the King bearing his shotgun and obviously out for a moose hunt, the hunter raises his arms and loudly says “Don’t shoot, I’m not a moose!”  The King, wasting no time, shoots the unfortunate hunter.  When the King’s servant asks, in a shocked and shaken voice, why the King shot the hunter, after the hunter said he wasn’t a moose, the King cleared his through, and in his most regal voice, explained:  My good man, I believe you misheard him.  He did, in fact, say “Don’t shoot, I am a moose.”  It doesn’t really matter who heard right because, after all, moose, even in Sweden, can’t speak.

So why, on the Tuesday before Thanksgiving, do I relate this story?  Because of a different story I read recently (although the story itself is from 2009).

It appears that, while on a turkey hunt, a man under suspicion of committing workers’ compensation fraud saw the man investigating his claim.  Intentionally or accidentally, the man shot the investigator, there conducting surveillance.  That ought to give the next investigator some pause before checking up on an applicant’s limitations.

I know this story is old and takes place in New York, but with Turkey Day two sunrises away, I couldn’t resist telling my patient and forgiving readers about it.

Gobble Gobble!

Do you remember Tommy Jenkins?  He was your annoying friend in fifth grade.  He would sit next to you at lunch time, wanting to “share” your fruit snacks.  Of course, as soon as your fruit snacks were gone, Tommy would reach into his lunch box and pull out his chocolate covered wafers.

The nerve!  The gall!  THE CHUTZPAH!  Here is this kid enjoying the fruit snacks of your labor, the ones you begged your mom for and endured steamed vegetables to get.  And now you can’t even get a share of his chocolate treats.

Well, Tommy grew up, and eventually filed a workers’ compensation claim.  This time, however, he was not content with the money in his employer’s cookie jar, and wanted what was under its mattress as well.

In the case of State Compensation Insurance Fund v. Workers’ Compensation Appeals Board, defendant had advanced over $11,000 for a 2003 injury.  Following the enactment of SB899, the Workers’ Compensation Judge, awarded roughly $6,300 for the 2003 injury and $4,800 for the 2007 cumulative trauma.  (There was also a 2000 cumulative trauma, but that did not play an important role in this case).

Defendant sought credit, which the WCJ allowed.  But at that point, applicant petitioned for reconsideration. Recognize the chutzpah?  Already, applicant has gotten more money than he is entitled to, and now he wants to go deeper into the defendant’s pocket and get more!

In a decision based seemingly on some warped perception of “fairness,” the WCAB granted applicant’s petition, reasoning that defendant should not get the benefit of both apportionment and credit.  (Folks – I’m not making this up, this was the reasoning!)  The WCAB also expressed concern that an alternative result would leave the applicant with no “new money” for his 2007 injury.

I can only hope that this was just a “bad day at the Board” situation, and we won’t have to see similar decisions again.  Of course, hope and four quarters will buy you a dollar’s worth of lobbying money with which to change the law.

By the rude bridge that arched the flood,

Their flag to April’s breeze unfurled,

Here once the embattled farmers stood,

And fired the shot heard round the world.

A most humble salute from your most humble blogger on this day to honor our veterans.  From the first to the last, thank you for your service.

Antonie Tur sustained an injury in 1991 while employed as a general manager at a certain facility that processes avian creatures of the insane variety.  The matter proceeded to trial and applicant was awarded an 83% permanent disability rating with future medical treatment.

The remaining issues of additional temporary disability and penalties were settled  on September 8, 2008, and, as part of the agreement, all penalties and interest claims were expressly waived.  Defendant made payments to applicant and his attorney in accordance with the agreement on September 24, 2008.

After defendant made payment, applicant sought interest and penalties, presumably on interest accrued during the 16 days between the award and payment made.  The matter proceeded to trial, and the Workers’ Compensation Judge found no penalties or late feed were owed and that all payments were timely.

Applicant filed a petition for reconsideration, arguing that the stipulation waiver of interest only applied to those payments already accrued, not future payments.

Incorporating the WCJ’s report and recommendation, which now agreed with the payment of interest, but not to applicant’s attorney and not penalties, the Workers’ Compensation Appeal Board granted reconsideration as to interest owed on the post-award amount, finding interest owed both to the applicant and the applicant’s attorney.  The WCAB denied the petition for penalties.

In reaching its conclusion, the WCAB found that Labor Code section 5800 is mandatory and the WCAB does not have jurisdiction to enforce any award that negates the section.

Interestingly enough, § 5800, while stating that “[a]ll awards of the appeals board … shall carry interest … from the date of the making and filing of said award,” also states “[a]s to amounts which by the terms of the award subsequently become due in installments or otherwise, such interest shall run from the date when each such amount becomes due and payable.”

In theory, had the settlement agreement included language of when the payment is to become due, such as in 30 days, no interest would have then been payable under section 5800.

The Court of Appeal denied applicant’s petition for a writ of review.

Perhaps we should all consider amending our standard settlement language?

California Workers’ Compensation defense practice offers few enough defenses for self-insured employers and insurance companies to use in resisting claims.  Two such defenses are bars to compensation, available when the injury is the result of horseplay (Hedges v. Workers’ Compensation Appeals Board), or when the injured worker is the initial physical aggressor. (Labor Code § 3600(a)(7).)

[For an interesting case touching on the initial physical aggressor defense, see this post.]

The WCAB recently clarified the proper application of these defenses, although unfortunately the defendant paid the price for this explanation.

In the case of Sergio Nufio v. Bridge Hospital, LLC, applicant and a coworker offered conflicting testimony as to “who started it,” each claiming that the other was doing the name-calling and butt-grabbing.  [Folks – I just report these cases, I don’t make them up.]

Applicant testified that this was not playful on his end, but rather he was being harassed by his co-worker.  Another coworker later testified that applicant was regularly goofing off at work.

Eventually the two decided to settle the matter downstairs in the basement.  Applicant, walking in front of his coworker, was shoved down the stairs, giving rise to the subject injury.

Defendant asserted two alternative defenses, horseplay and the initial physical aggressor defense.  In reviewing this case, the WCAB found that neither defense applied.

The initial physical aggressor defense was not available because the first physically aggressive act, as distinguished from horseplay, was performed by the coworker in shoving applicant down the stairs.

“But wait,” cried the defense, “the first physical act was applicant’s butt-grabbing!” [Again, dear readers, I don’t make these facts up.]

To this the court replied that those acts prior to the stair-shoving were acts of horseplay, and so do not trigger § 3600(a)(7).  And since the horseplay itself did not result in an injury… well, you understand.

So even if applicant was acting like a regular jerk and had it coming, his injury, at least in this case, is still compensable.

In other words, brave readers, if you play with fire, you will get all the benefits ofCalifornia’s Workers’ Compensation system.

Today I am at the California Self-Insurers Association Conference in Oakland.  If you see me, be sure to say hello.  Your loyal author will be engrossed in the subject matter, so , sadly, no “live blogging” of the conference will follow.

If there are tickets still available, I can’t urge you enough to attend.  I went to the conference last year and it was informative and interesting – you get to meet a lot of great people too.

I hope to see you there!

Labor Code § 4600, as part of California’s Workers’ Compensation system, imposes on employers, through self-insuring or through workers’ compensation insurance, to provide injured workers with medical treatment “reasonably required to cure or relieve the injured worker from the effects of” the injury.

But a person can be injured in more ways than one: an industrial shoulder injury and a non-industrial knee injury or an industrially injured respiratory system but non-industrial impairment of the circulatory system.  Does section 4600 turn an industrial injury into a ticket for medical buffet?  All indications point to section 4600 being ripe for abuse in this regard.

A recent panel decision denying reconsideration in the case of Hammerly v. Carrows Restaurant, in which applicant hurt her back.  The injury was accepted, and the agreed medical evaluator recommended psychological treatment to address persistent pain problems following a surgery performed on the injured area.  Applicant testified during her deposition that she had not filed a claim for injury to the psyche, nor did she intend to.

Defendant then argued that psyche treatment is unwarranted without applicant’s meeting the predominant cause standard of Labor Code § 3208.3.  Section 3208.3(b)(1) states that “in order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury.”

Until applicant had met her burden of proof, argued Defendant, she was not entitled to any psychiatric treatment.

The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board were not persuaded by this argument and instead held that section 3208.3 does not limit the application of section 4600.  Because treatment of a non-industrial impairment is necessary to relieve the effects of an industrial injury, the employer must pay for this treatment.

In other words, if an applicant’s non-industrial obesity makes surgery for an industrial injury less safe, applicant is suddenly entitled to a “free” gym membership, or perhaps even an at-home gym.

If applicant’s non-industrial depression makes physical therapy ineffective, applicant becomes entitled to psyche treatment.  Perhaps applicant is even entitled to a ramp on his vacation home.

So long as an applicant’s attorney can persuade a panel qualified medical evaluator or an AME to link the symptoms of a non-industrial injury with an industrial one, applicant becomes entitled to free medical care (not free to the employer, of course, just free to the applicant).

This, of course, translates to more leverage for the applicant to demand a higher settlement by compromise and release, forcing defendants to choose between paying the Danegeld or enduring a scorched Earth campaign.  Neither is appealing, especially when faced with a sympathetic evaluator.

The best way out of this trap is solid advocacy – the attorneys in the Hammerly case put forth a good argument, but sadly it did not work, despite its obvious merit.  The key battles appear to be in the initial selection of a QME and the persuasive depositions that follow.