Category Archives: Defenses

Housekeeping, Pool Cleaning, and Gardening — All Medical Necessities?

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Are services for injured workers such as housekeeping, pool cleaning, and gardening “medical treatment” under Labor Code section 4600 and are treating physicians’ recommendations for such services properly referred to Utilization Review under Labor Code section 4610?  The Court of Appeals recently denied applicant’s petition for a writ of review of a divided Workers’ Compensation Appeals Board decision on these very questions.

In the case of James Bishop v. Workers’ Compensation Appeals Board, applicant allegedly sustained injuries to his back, gastrointestinal system, and bilateral knees over a period of twenty-six years, ending in November of 1996 (a specific injury date of September 24, 1996, was also plead).  In 2006, a Workers’ Compensation Judge found applicant sustained an industrial injury with a permanent disability rating of 77%, after apportionment, and awarded applicant future medical treatment.

Defendant, in abiding by this award, paid for bilateral knee replacements, a hip replacement, and left shoulder surgery.  I mention this little fact just to point out that the defendant was not trying to avoid its duties under this award, nor was defendant a cheapskate.  Applicant received extensive treatment and considerable expense to defendant.  So what’s the problem?  Applicant made demands for housekeeping (8 hours a week), pool cleaning (once a week), and gardening services (once a week), based on the recommendations of the treating physician and the Agreed Medical Evaluator, as well as other “treatment” such as a weight loss program.

The WCJ awarded these services and ordered penalties be paid for unreasonable delay of medical treatment.  Defendant filed a petition for reconsideration, arguing that such services were not medical treatment reasonable and necessary to cure or relieve the applicant from the effects of his injury, and so were not subject to penalties for their delay.  Defendant further argued that because these services were not medical treatment, there was no obligation to refer such requests to utilization review.  (The WCJ found that defendant’s UR denial of the treating physician’s recommendations was timely as to the weight loss program, but being silent on the issues of the housekeeping, pool, and gardening services, was not timely.)

The WCAB found that neither the reports of the treating physician nor the AME constituted substantial evidence because of the unexplained conclusion that such services were medically necessary.  The WCAB also concluded that such services were not “medical treatment” and so were not subject to UR.

The WCAB also instructed the WCJ to clarify his analysis regarding the imposed penalties.

So what should we take away from this?  I would still recommend sending recommendations for in-house services to UR – this was a divided panel and therefore offers even less authority than the typical unanimous decision; it looks like defendant caught a lucky break in this case.  But, all in all, this is a great decision for an obviously responsible and responsive defendant – the matters of medical necessity were paid for; the trivialities of milking the defendant for free house services were properly and effectively resisted.

Often enough, these services are awarded to applicants, but usually the treating physician and/or the A/QME have to do a bit more leg work in their reports.  If you keep a close eye on these reports and requests for treatments, you might catch an M.D. or, more likely, a D.C. cutting corners, and thereby cutting you a path to denying “treatment.”

What’s your craziest story?  Free hot tubs? Manicures and pedicures?  If you’ve got a crazy story, let me know – gregory@grinberglawoffice.com

On the 240 Week Bar to Death Benefits

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There are times when, as a California Workers’ Compensation defense attorney, one can’t help but sigh in frustration.  Now, I don’t sigh in frustration when I need to put in extra hours on a case, when an issue is challenging, or when opposing counsel decides to go by Dick instead of Richard.  These are just parts of the job and, after all, “this is the business we’ve chosen“.    What makes your overworked and underfed blogger sigh?

Imagine reading through a file, and realizing that the procedures up to this point were handled flawlessly by a dedicated and knowledgeable adjuster, the law is clearly on the side of the employer, and the defenses are all mustering to protect the defendant from liability.  Then you hear the voices…

First there is the voice of applicant’s attorney “blah.. blah… blah… injustice… blah… blah.. unfair… blah… blah… my fee!”  Then there is the voice of the Workers’ Compensation Judge: “Well, Mr. Grinberg, don’t you think it’s unfair to deny a poor widow her husband’s death benefits over some mere technicality?”

In the case of Kathleen Brezensky (widow) and Chester Brezensky (Dec’d) v. Workers’ Compensation Appeals Board, that “mere technicality” was the statute of limitations under Labor Code section 5406(c).

Applicant sustained an industrial injury in 2002, and died in 2009.  An application was filed in 2010, and defendant raised the statute of limitations defense.  The WCJ concluded that the case could proceed and the statute of limitations defense failed because applicant did not know, until after the death of her husband, that the industrial injury of 2002 was the (theorized) cause of his eventual death.

Defendant petitioned for reconsideration, and the Workers’ Compensation Appeals Board rescinded the WCJ’s order and issued a “take nothing” order for the applicant-widow.  Relying of a California Supreme Court case, the WCAB found that there can be no claim for death benefits if the death occurs more than 240 weeks after the alleged death-causing injury, regardless of applicant’s awareness of what caused the death.

In other words, the 240 week limit applies even without any knowledge on the part of the applicant.

One of the benefits of operating in a system where anything can happen, is that… well… anything can happen, including the proper application of the law, without passion or prejudice, even in the cases of sympathetic applicants.  Fortunately, the defendant in this case chose to go the distance and petition for reconsideration.

The Court of Appeal subsequently denied applicant’s petition for reconsideration.

Your humble blogger has, at times, been called many less-than-flattering names for his refusal to side with poor widows and orphaned children in such cases.  All my sympathies go to those poor people injured, unable to work, or grieving for a lost family member.  But when one’s heart overflows with sympathy, we send flowers and a card – we don’t rob a blameless victim, like the employer.

Smashing Through the Eggshell Applicant Theory

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Have you ever heard of the eggshell plaintiff (or applicant)?  Picture an employee made entirely of egg shells.  When a clumsy customer stumbles into the shop, he bumps into an ordinary employee without any noticeable damage, but when he bumps into Mr. Eggshell with the exact same amount of force… well… all the employer’s doctors and all the employer’s lawyers couldn’t put Mr. Eggshell back together again.

In other words, the defendant must take the injured worker as he finds him – with no discount for the gap between a typical employee and this super-sensitive one.

But what about apportionment?  If there is a non-industrial contribution to applicant’s impairment, shouldn’t that discount invalidate this “eggshell applicant” doctrine?  Of course it does – but only as to permanent disability.  Unfortunately, we can not apportion medical treatment, and 1% industrial causation imposes 100% liability for medical costs.

The reason, dear readers, that I serve you this omelet, for which eggs were most certainly broken, is because of a recent case – Karen Reff v. Workers’ Compensation Appeals Board (writ denied).  Therein, applicant-nurse contracted occupational pneumonia which aggravated her pre-existing common variable immune deficiency, a genetic disease.

Applicant claimed that the industrially contracted pneumonia interacted with her pre-existing (and previously dormant) common variable immune deficiency, necessitating lifetime medical treatment, to wit, immunoglobulin deficiency replacement treatments.

The Workers’ Compensation Judge applied the eggshell plaintiff doctrine to hold defendant responsible for applicant’s future medical treatment.  Defendant naturally petitioned for reconsideration.

The Workers’ Compensation Appeals Board granted defendant’s petition, reasoning that, based on the relevant medical information, applicant’s hospitalization would have eventually happened when something (any number of things) would have triggered here CVID.  Furthermore, it appears that the more likely reason doctors were continuing the immunoglobulin therapy was to treat the CVID and not the industrial injury.

To summarize, applicant claimed her non-industrial injury was made worse by the industrial one, and demanded defendant pay for her non-industrial treatment.  The WCJ agreed.  But the WCAB put the question to a different standard.

According to the WCAB, the proper inquiry is whether “the medical evidence indicates that within reasonable medical probability the normal progression of the non-industrial disease or condition would have resulted in disability regardless of the industrial injury.”

[In interpreting this standard, your humble author can’t help but muse whether mortality is a “non-industrial disease or condition” such that a death claim could be defeated by showing the result that would have occurred “regardless of the industrial injury.”  Of course, I don’t advise trying this argument.]

In other words, because many things will trigger the same effect in applicant’s non-industrial, pre-existing condition, the award of lifetime medical treatment is not justifiable.

The Court of Appeal denied applicant’s writ of review.

The Bite of the “Going and Coming” Rule

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If an employee “lives” far away from where he “works” is he ever off duty?  The answer, according to the Workers’ Compensation Appeals Board and the Court of Appeal, is yes!

In the case of Dann Peter Shubin v. Workers’ Compensation Appeals Board, applicant worked as a pilot for Southwest Airlines, and was based in Oakland, even though he and his wife “lived” in Pasadena.  Applicant would arrange his schedule to have weekends off and would stay with friends or in his van between flights.

Under Southwest Airlines’ scheduling scheme, after a flight, reserve pilots like Mr. Shubin would receive a 9-hour “rest” period during which they could not be recalled for more work.  Applicant had just started one of these rest periods and decided to visit friends in Winters, a town roughly an hour away.

En route, applicant was in a car collision, and subsequently filed a claim for workers’ compensation benefits.  The Workers’ Compensation Judge found the injury AOE/COE (arising out of employment and within the course of employment), and defendant filed a petition for reconsideration.

Because the WCJ did not submit a report on recommendation, we will never know his reasoning.  Never the less, the WCAB studied the issue and granted reconsideration, recognizing that the coming and going rule applied to this case.  [If the going and coming rule does not apply to an employee who, by company-wide policy, can not under any circumstances be assigned any tasks for the next 9 hours, I don’t know where it would apply.]

The “going and coming” rule is one of those rare instances where common sense and reasonability poke their way through the shroud of California’s Workers’ Compensation system.  Essentially, the rule provides that injuries sustained going to or coming from work are not covered by workers’ compensation.

There are exceptions to this rule, of course.  These exceptions include “special missions” and “commercial travelers,” the details of which are the subject of a future post.  Because applicant was officially and actually off-duty for the next 9 hours, the going and coming rule applied and applicant’s claim was barred.

Applicant was a free man living in a nation of laws – he chose to “live” in Pasadena, he chose to “work” in Oakland, and he chose to visit Winters on the night of his unfortunate car accident.  The only alternative outcome for this case would have been to hold that if an employee works outside the four walls of his home, he is always on duty by virtue of being on the other side of his front door.

Dear readers, by no means am I the type of man to tell others how to run their businesses.  But it is worthy to note that in this case, Southwest was saved by having a company-wide policy of duty/off-duty pilots and sticking to that policy.  No doubt if applicant could have offered evidence that pilots were occasionally called back to duty during their “rest” period, in violation of this rule, the case would have turned out quiet differently.

Correctional Officer Heart Presumption Rebutted? You-betcha!

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Labor Code section 3212.2 creates a presumption of industrial causation for corrections officers who, sustaining an injury to the heart (or “heart trouble”), have the injuries develop or manifest themselves during employment, or, in some cases, up to 5 years later.

But, practically speaking, is this presumption ever rebutted?  Is it possible an evaluating physician will conclude the heart trouble developed or manifested itself before applicant began working for the Department of Corrections?  After all, we’ve seen an industrial award to a sheriff’s deputy under section 3212.5 for a congenital heart defect.

The answer, apparently, is yes.  I respectfully direct your attention to the writ denied case of Michael Yubeta v. Workers’ Compensation Appeals Board. [Forgive your humble author his “you-betcha” puns.  Just give a polite smile and keep reading.]

Applicant corrections officer (the penal kind, not grammar), filed a claim for heart disease after thirteen years of employment by the Department of Corrections and Rehabilitation.  The parties agreed to a medical evaluator who, after evaluating applicant, diagnosed him with cardiovascular disease and coronary heart disease.

However, following a thorough review of the records (possibly guided by a well drafted letter), the AME found the cardiovascular disease to have manifested itself before applicant began working for the DOC.

Therefore, reasoned the AME, the public safety officer presumption of section 3212.2 does not apply, and 85% of the impairment should be apportioned to non-industrial causes.  The other impairments, including the psyche claim, went as these things normally do.

Did applicant petition for reconsideration?  Yubet[ch]a!

In his report and recommendation that applicant’s petition be denied, the Workers’ Compensation Judge argued that the designation of an agreed medical evaluator reflects a recognition from the parties of the evaluator’s competence and impartiality.

Given this, the WCJ’s report continued, “[t]he question of when a disease process develops and manifests itself was a question of medical fact within the expertise of” the AME.  As the AME found, the hypertension “develope[d] and manifest[ed] itself” before applicant became a correctional officer employed by the State.

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration, adopting and incorporating the WCJ’s report.  The Court of Appeal denied applicant’s writ of review.

Another Failed Horseplay Defense

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Last week I told you about a case that contrasted two California Workers’ Compensation defenses:  horseplay and initial physical aggressor.  Well, that provides me an opportunity to Segway into another recent writ denied case where the horseplay defense also failed (erroneously, I believe).

Applicant was a security supervisor at University of Southern California, and, as part of his duties, rode around on a Segway.  In case you didn’t know, Segways are like wheel chairs for those who are physically capable of walking and standing, but are unbelievably lazy.

Witnesses testified that applicant circled a co-worker several times on the Segway (the spoken-of horseplay) before leaving the parking lot, only to lose control of the Segway and fall, injuring his head, neurological system, ears, legs, knees and psyche.

The Workers’ Compensation Judge rejected the horseplay defense, reasoning that the horseplay was over by the time the injury had occurred — applicant was no longer circling his co-worker when this had happened.  Neither the Workers’ Compensation Appeals Board nor the Court of Appeal were willing to step in to correct the WCJ’s erroneous finding (as your humble author submits it should be called).

But it is possible and probable that the fall and the resulting injuries were in fact caused by the residual effects of the horseplay.  Circling around and then driving off on what is clearly not a stable device seems like a guarantee for disaster.

And so dear readers, be warned that the shield of horseplay is more of a buckler, one which brings to bear its utility only with a narrow scope and precise application, rather than general usage.

On Mysterious Deaths

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What happens when a man is murdered on the job, but no one (except, perhaps, the at-large murderer) knows the motive for the slaying?  Enrique Vicente Rincon, deceased, was working in a liquor store when a hooded man walked in and shot him.  The gunshot wound resulted in Mr. Rincon’s death and the hooded gunman escaped.

The widow filed a claim for death benefits (Rincon v. South Bay Liquor & Market), and the defendant elected to put the issue of Arising Out of Employment/Course of Employment on trial.

The defense conceded COE, recognizing that the death causing injury occurred while Mr. Rincon was on the job.  But what was the motive for the murder?  If it was a personal vendetta against Mr. Vincent, then it can hardly be AOE – an ex-girlfriend, a driver cut off the day before, an angry neighbor in the final stage of the Hatfield – McCoy feud.  None of these have to do with the job, and should not be compensable (also known as the “personal risk” doctrine).

The investigating police officers could only speculate – it could have been a gang initiation, or a robbery in which the robber lost his nerve (explained by the fact that no money was taken during the crime).  There was really no way to know, unless the murderer was caught, or at least identified.

The Workers’ Compensation Judge applied the “mysterious circumstances” doctrine, holding that, because the motive for the murder was unknown, the death must be presumed to satisfy both the AOE and the COE requirements for finding the injury compensable.

The Workers Compensation Appeals Board adopted and incorporated the WCJ’s opinion.

Sometimes, nothing can be done – the facts aren’t there or there is no way to get them.  But in cases like these, the employer needs to do an even better job investigating the case than the police.

Who had a motive to kill the employee?  Facebook, e-mails, cell phone logs (and texts) should all be subpoenaed.  The only real restraint on the thoroughness of the investigation should be the cost (with no medical treatment and statutory caps on recovery, the limits are easy to see).

Mr. Rincon is the tragic victim of a terrible murder.  Unfortunately, the employer was victimized by California’s Workers’ Compensation system as well.

Lap Band Surgery as NOT Medically Necessary

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Are there limits to the Labor Code § 4600 duty to provide all medical treatment reasonably necessary to cure or relieve the worker from the effects of an industrial injury?  The cynical California Workers Compensation defense attorney might answer “no,” but in fact there are.

Labor Code § 4600 not only requires employers to provide treatment for industrial injuries, but for non industrial injuries as well (as in some cases, discussed in a previous post).  But in a recent workers’ compensation case, the Workers’ Compensation Judge and the Workers’ Compensation Appeals Board rejected a push for the limits of § 4600 and treatment of non-industrial injuries to be expanded even further.

In Navarro v. Vengroff Williams Associates, applicant sought to have her non-industrial obesity treated with lap-band surgery (at employer’s expense).  Applicant’s attorney tried valiantly and repeatedly to lead the Agreed Medical Evaluator to agree that lap band surgery was reasonably necessary to treat applicant’s industrial injury.

Fortunately, all applicant’s attorney came away with from the deposition was the AME’s concurrence that a healthy weight (a lower weight in applicant’s case) would benefit her health, as it would anyone else’s.

Utilization Review had non-certified the request for treatment and applicant went charging for the Board.  The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board were not impressed.

My favorite quote from the WCAB panel’s opinion denying reconsideration?

“It is no surprise that Dr. Wertheimer agreed with applicant’s attorney that losing weight would be beneficial to applicant, who is pre-diabetic, and would decrease her symptoms and increase her activities.  Those improvements might occur for any individuals weighing over 300 pounds who lost weight, regardless of whether they had sustained any injury, industrial or otherwise.  However, that losing weight is beneficial is not equivalent to the medical necessity of Lap Band surgery.”

The panel also rejected the “highly improper” request that the Utilization Review report be considered untimely because a request for treatment “should have been presumed” to be made orally at the AME’s deposition.  We have covered the procedural requirements for a request for treatment in this post and this one.

Clearly, applicant’s attorney would benefit from becoming a regular reader of this blog (as would anyone… hint-hint).

If nothing else, this opinions shows that the reasonable and necessary standard of § 4600 still has some teeth peeking out of its otherwise harmless gums.  And that is something that even a workers’ compensation defense cynic can be happy about.

What Constitutes a “Lawful” Personnel Action?

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Applicant, a psychiatric nurse, filed a psyche claim after repeatedly being told by a supervisor (a psychiatric technician) to administer a drug at a more frequent rate than that prescribed by the treating physician.  The disagreement had to do with the meaning of “24 hour period.”  The technician incorrectly believed that a 24-hour period ran from midnight to midnight, rather than an actual 24 hour cycle beginning with the first administration of a drug.

The Workers’ Compensation Judge interpreted applicant’s claim as hurt feelings based on resentment at being under the supervision of a technician, and found applicant had suffered no actual injury.  Applicant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board denied applicant’s petition, adopting the WCJ’s opinion and concluding that defendant’s conduct was a lawful, good-faith personnel action and regarded applicant’s claim as a means of confronting the defendant hospital over the issue of its chain of command.

The Court of Appeals took a different approach to this matter.  In its opinion, the Court annulled the decision of the WCAB and remanded the case to determine if the action of defendant, through its supervising technician, was, indeed, lawful.

Labor Code § 3208.3 governs psyche claims, and subsection (h) provides a defense against those psychiatric injuries substantially caused by “a lawful, nondiscriminatory, good faith personnel action.”

At least in this case, the good faith personnel action defense to a psyche claim turns on the meaning of the word “lawful.”  The psyche technician’s interpretation of “24 hours” seems at odds with the definition used in the practice of medicine, and likely the common sense meaning of the term (imagine a patient, in following the prescription of 1 pill every 24 hours, taking one pill ten minutes before midnight and another twenty minutes later.).

That being said, does such a mistake and deviation from generally accepted practice somehow make the supervisor’s actions anything other than lawful?  At most, this seems like an act of negligence.

Hopefully, lawful and correct will remain two distinct terms and the good-faith personnel defense will be one less chip worse for the wear.  Let’s all keep our eyes open for how this case turns out.

132a When Employee Says He Can’t Do the Job? Not in My Workers’ Comp!

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In California’s Workers’ Compensation world, how much consideration can a defendant give an applicant’s own concerns about performing his or her job duties after an industrial injury?

In the relatively recent case of Moreno v. Workers’ Compensation Appeals Board, applicant energy technician injured his lumbar spine and right hand.  He then filed a claim for additional benefits under Labor Code § 132a.  Labor Code 132a provides additional benefits if the applicant can show discrimination against him or herself in retaliation for filing a workers’ compensation claim.  By law, an employer cannot insure against a 132a claim.

The skinny:  Applicant can not prevail on his 132a claim when he fails to show that he was treated differently than a non-industrially injured worker would have been; defendant successfully asserted the “business necessity” defense by showing a reasonable concern for undue risk of harm to the applicant in his pre-injury job.

Applicant had complained of pain in performing his job duties within the work restrictions set out by the Agreed Medical Evaluator.  The employer then put him on the priority list for the next available job, but took the original work away.

If the worker himself says he can’t do the job because of industrial-injury related pain, shouldn’t that be enough?  Apparently so!

The Workers’ Compensation Judge ordered the applicant to take nothing on the 132a claim, finding that applicant did not meet the burden of proof.  That burden could have been met by showing that non-industrially injured workers were treated better than applicant had been.

Furthermore, defendant had met the burden of showing its actions were motivated by a business necessity.  The business necessity defense was met by showing that, at the time applicant wanted re-instatement to his old job, the employer reasonably believed applicant was unable to perform the duties without undue risk of harm to himself, based on the conflict between the AME’s restrictions and the job duties.

After defendant sought clarification from the AME on the imposed work restrictions, the AME rescinded some, and applicant returned to work.

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration, and the Court of Appeals denied applicant’s petition for a writ of review.