Category Archives: Defenses

A Rejected Theory of Causation

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California Workers’ Compensation law allows the injured worker to recover not only for the actual injury sustained, but also many of the consequences that follow from the impetus of the injury.  An injured right knee turns into a bilateral knee claim, injured elbows can lead to psyche claims, and injured backs develop into compensable sleep disorders.  But, despite all evidence to the contrary, it appears that the “compensable consequences” is not a panacea for all of an applicant’s injuries, industrial or otherwise.

A recent writ-denied case rejected an applicant’s theory of causation of injury to his previously non-injured arm.

The case is that of Jantz v. Workers’ Compensation Appeals Board (2011 Cal. Wrk. Comp. Lexis 119).  Jantz injured his legs, elbows, back, left arm and left shoulder.  Some time afterward, he fell at his granddaughter’s softball game because of uneven cement, injuring his right shoulder.

His theory of causation for the right shoulder as a compensable consequence?  If his left arm had not been in a sling, he would have been able to use his left arm to stop his fall.  The theory was squarely rejected as speculative.

Jantz will hopefully lend itself easily to other cases to defend against other compensable consequence claims.

Liability to Contractor’s Employees

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The California Supreme Court recently issued an opinion addressing the extent of liability parties have to the employees of hired contractors.

Jack hires Jill Inc. to have his lawns mowed.  When Jill’s employee hurts himself on Jack’s lawn, is Jack liable?  What if Jack had violated Occupational Safety and Health Administration (OSHA) guidelines on how razor-sharp he can keep his blades of grass?  What if Jack’s own employee, Albert, hurt himself in the same way as Jill’s employee and received workers’ compensation benefits?

The skinny:  a party owes no duty to the employees of its contractors.  Even if two workers get hurt in the same event, the big boss is on the hook only for his own worker, not the employee of the contractor.

US Airways hired a contractor to maintain and operate a conveyor at San Francisco International Airport.  One of the contractor’s employees injured his arm inspecting the conveyor.  As it turns out, the conveyor “lacked certain safety guards required by applicable regulations.”  Fortunately, it wasn’t a back sprain while gently removing luggage from the conveyor.

The Court of Appeals held that the violation of an OSHA safety regulation imposes liability upon US Airways.  According to the Court of Appeals, observing OSHA safety regulations is a non-delegable duty.

The Supreme Court reversed, relying on its opinion in Privette v. Superior Court.  The Court re-affirmed the rule that a hirer owes no duty to the employees of the contractor.

Will this apply to the Workers’ Comp world?  Time will tell how Workers’ Compensation Judges respond to this ruling.  But I have a feeling that the world of Serious and Willful defense will never be the same.

When “Employment” Begins

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A recent writ denied case addressed the details of one of the defenses to psyche claims.  Labor Code § 3208.3 provides that psyche claims can not proceed if the employee has been employed less than (not necessarily continuous) six months.  The exception to this is a sudden and extraordinary event.  An earlier blog post covers this exception.

The skinny:  Employment starts with the first day of actual service – not the technical hire date, preparation dates, or anything else.  If Employee is “hired” and begins work the next week, the next week is the first day of employment for purposes of § 3208.3.

In the case of Hamilton v. WCAB, applicant Jill Hamilton was hired on September 14, 2008 to work as a home mortgage assistant, and began work on September 15, 2008, all after filing an online application for the job on August 6, 2008.  Applicant’s last day of work (and earning wages) was on March 12, 2009, and she was taken off the company books on January 25, 2010.

08/06/08– Applies for the job

09/14/08– Official hire date

09/15/08– First day of work

03/12/09– Last day of actual work/earning wages

01/25/10– Removed from company books

As in all things, timing is everything – had applicant started work just a few days earlier, her psyche claim would have survived § 3208.3.

Knowing this, applicant argued that in early September of 2008, she went, at her own expense, to an office in Ventura to pick up a laptop for her training program.  Although she was not compensated for her time, she claimed that this was her first work-related act, so her “employment” commenced sometime (any time that it might please the court) before September 12, 2008.

The Workers’ Compensation Judge found that applicant began working more than six months before March 12, 2008, and therefore was entitled to proceed on her psyche claim.

The Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration, taking a position contrary to the WCJ’s.  Relying on previous case law, the WCAB found that employment begins with actual work, and does not include time off for disability.  Rather, what counts is the “days of actual service” and not those “days of employment where there was no actual performance of services.”

On appeal, applicant’s Petition for Writ of Review was denied.

Before you follow this next tidbit, bear in mind that this is a crazy idea and using it might incur ridicule, discipline, penalties, or even sanctions!  Of course, if you pull this one off, your name will live forever in endless glory.  When signing autographs, don’t forget to tell the fawning fans where you first got the idea for this maneuver.  That being said, let’s walk down “what if” road.

What if we took the language of this opinion one step further.  Averaging six months to 180 days, can we say that vacations, holidays, and weekends don’t count?  Can we argue that applicant is barred against a psyche claim until he or she has worked an actual 180 days (not counting weekends, holidays, etc.?)

After all, if the job is causing a psyche claim, shouldn’t not being on the job slow the progress of the injury?

It’s unlikely to work, but could provide an interesting chance to test the limits of § 3208.3.

Crazy for Drycleaning

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I recently started using a dry-cleaner near my office for my shirts.  Before, I used to wash and iron them at home, but the service is ridiculously affordable and convenient.  Little did I know, before reading about the story of Hilda Bonilla, that the work can be very dangerous.

Hilda, a dry cleaner, was injured when an ironing press came down on her hand at work.  The burn mark quickly appeared, followed by a claim for injury to her skin, psyche, nervous system, internal organs, and sleep.

The skinny: for a psyche claim for an employee working the job less than six months, the injury must be caused by an event that is both sudden AND extraordinary – the type of injury that regularly happens at this job, no matter how suddenly, does not qualify.

The Workers’ Compensation Judge found all injuries, the psyche as well, to be compensable.  Defendant petition for reconsideration, arguing that Labor Code § 3208.3(d) barred Hilda’s claim.

§ 3208.3 governs psyche claims, and specifically bars all claims of psychiatric injury for those employees with less than six months (total, not necessarily continuous) time on the job, unless the injury is caused by a sudden and extraordinary event.

Does the ironing press you were using a second ago coming down on your hand count as “a sudden and extraordinary event”?  If it does, is there any specific injury (rather than cumulative trauma) that isn’t a sudden and extraordinary event?

The record reflected ample witness testimony that burns were common, and that employees had to be careful lest they suffer burns from the equipment.

The WCAB granted reconsideration, reasoning that the event may have been horrible and happened suddenly, but the phenomenon of being burned while working at a dry cleaner was not extraordinary, as required by the statute.  By contrast, a gas explosion or workplace violence would qualify as such.

Hilda petitioned for a writ of review.  The result?  WRIT DENIED!  (Bonilla v. Workers’ Compensation Appeals Board (Cameo Cleaners))

Defining the Scope of the Good-Faith Personnel Action Defense

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In a recent case, County of Sacramento v. WCAB (Michael Brooks) (2011) 13 WCAB Rptr. 193 , the Workers’ Compensation Appeal Board interpreted the good-faith personnel action defense, further clarifying its scope.  (Sorry folks, no good news is headed our way on this one…)

In California Workers’ Compensation practice, recent years have seen a growing number of psyche claims tacked on to other injuries, but sometimes as stand-alone injuries as well.  In both cases , the insurer/employer should look closely at the good-faith personnel action defense of Labor Code § 3208.3(h).

Essentially, an otherwise compensable psychiatric injury shall not be compensable for an injury “substantially caused by a lawful, nondiscriminatory, good faith personnel action.”

In the Brooks case, the applicant, a Supervising Deputy Probation Officer with the County of Sacramento Probation Department filed a complaint against a subordinate for excessive force in subduing a juvenile inmate.  An investigation followed, during which Mr. Brooks perceived a total lack of support from his supervisors and employers, and the over-enthusiastic employee filed a grievance against the applicant..

After filing an application, the parties used an Agreed Medical Evaluator who found that applicant’s psychiatric impairment, Adjustment Disorder with Depressed and Anxious Mood, was caused, in equal parts, by (1) the filing of the grievance; (2) defendant’s investigation; and (3) his feelings of being unsupported.

The Workers’ Compensation Judge found that the defense of good-faith personnel action was not met and made an award in favor of applicant.  Defendant filed for reconsideration.

On reconsideration, the WCAB affirmed the WCJ’s decision, finding two of the components causing the impairment did not qualify as good-faith personnel actions, so only 33% of the causation qualified for the defense, rendering the § 3208.3(h) inapplicable.

As the WCAB reasoned, the term “personnel action” as used in § 3208.3(h) is “conduct attributable to management in managing its business.”  The WCAB expressly rejected the position that the scope of “personnel action” encompasses “all actions by any level of personnel in the employment situation.”  (13 WCAB Rptr. 193, 194).  Among those actions not covered by the defense are the actions of one employee against a fellow or lesser employee, unless authorized or ratified by management.

Therefore, the WCAB concluded, while the investigation was a good faith personnel action, the grievance filed by applicant and applicant’s own feelings in response to his perceptions regarding management were not good-faith personnel actions.

Defendant has filed a Petition for Writ of Review, which was issued on June 23, 2011.

In reading these facts, I can’t help but think that the Board erred in its conclusion.  I agree that the process of filing a grievance might not be covered by the defense of § 3208.3, and no one is contesting the finding that management’s investigation falls well within the scope of the same.

But defendant’s approach to handling this matter, and the degree of support provided to applicant throughout the process, is a good faith personnel action in and of itself.  Therefore, applicant’s reactions to this good faith personnel action should be folded into the personnel action, and thereby be covered by the defense.

After all, every time the good faith personnel action defense has been used successfully, there must have been some reaction from the applicant to the action itself.  Perhaps the Court of Appeals shall see it the same way as does your humble author?

Statute of Limitations With Teeth

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In California Workers’ Compensation defense practice, the Statute of Limitations defense is always in the back of the practitioner’s mind.

Labor Code § 5405 limits “[t]he period within which proceedings may be commenced” to one year from (a) the date of injury; (b) payment of benefits; or (c) provision of medical treatment.

A recent Writ Denied case (Barragan v. WCAB) defines the meaning of commencement of proceedings and puts some fresh teeth into the jaws of that old SoL dog.

Applicant claimed an injury to his back and neck occurred in October of 2006.  Defendant provided some medical treatment, but denied the claim in January of 2007.

Defendant took applicant’s deposition in March of 2008.

Applicant claims to have filed an Application for Adjudication of Claim on July 3, 2007, but no record of this was in the Board file, served on defendant, nor added as an exhibit at the Mandatory Settlement Conference.  Nor was this 2007 application marked for identification at trial.

The Court of Appeals declined to review the WCAB decision that a deposition does not institute proceedings.  Only an Application for Adjudication of Claim can satisfy the requirements of Labor Code § 5405.

In other words, an applicant must file an Application for Adjudication of Claim within one year of the latest of parts (a), (b) or (c) above.

A deposition does not commence proceedings, nor a request for documents, nor a letter to applicant’s attorney, nor a get-well-soon card signed by every one of the applicant’s co-workers.

I like this case for yet another reason – the applicant did not put on all the evidence he could have, namely the allegedly date-stamped application that would have defeated the Statute of Limitations defense.

But the Workers’ Compensation Appeals Board did not send the case back to the Workers’ Compensation Judge to “develop the record” and allow applicant another swing at the ball.

The MSC came and went, discovery opened and closed, and that, as they say, was that.

In other words, the Statute of Limitations defense appears to have some teeth yet.  And to illustrate this point further, here is a short video on the Statute of Limitations defense.

On weekday desk-jocks and weekend furniture movers

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In California Workers’ Compensation law, there are a few  un-insurable area.  One of them is Labor Code § 132a – discrimination against an employee for filing a workers’ compensation claim.

Sometimes, however, the workers’ compensation claim provides the context for the employer’s action, but not the reason.

In a recent case, Sandoval v. WCAB (2011), Sixth District Court of Appeals denied applicant’s Petition for Writ of Review.

Applicant claimed to have sustained an injury to his back while working as a delivery driver and was put on modified duty riding a desk.  Someone saw him moving an object beyond his stated restrictions and the employer retained an investigator firm to gather sub-rosa videos.  The videos showed applicant moving heavy furniture on his weekends.

Naturally, the employer fired him.  The 132a claim was the result.  The Workers’ Compensation Judge found for the applicant, reasoning that the proper course of action would have been to bring the videos to the treating physician.

Just a thought: the employer can comprehend the physician-imposed work restrictions enough to assign a job within limited duties, but somehow can’t recognize when the worker is going beyond those restrictions?

The Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration.  The worker was fired because the employer subjectively thought him a liar, and the evidence supports this reason as more than just a pretext.  In fact, the WCAB reasoned that “whether [defendant’s perception of applicant as a liar] was correct is immaterial for our purposes, so long as it was sincere.”

The lesson in this?  The employer is not stuck with a worker who is lying – if something, anything, seems fishy about the employee, don’t hesitate to retain a private investigator service.

Sub-rosa saved UPS (the employer) from having to accommodate someone who, from all appearances, was not the most trust-worthy, nor the least opportunistic, employee.