WCDefenseCA

Some of my dear, loyal readers will recall their humble blogger’s post on “developing the record” and the apparent signal that the Workers’ Compensation Appeals Board was growing weary of applicants getting second and third bites at the apple when they found themselves repeatedly bringing knives to a gun fight.  It looks like knives may be back in style.

In a recent panel decision, Jose Luis Tejeda-Garcia v. Modern Group (Company)/Dragon Products, the workers’ compensation Judge gave an order to develop the record, which the WCAB declined to disturb.

Applicant claimed to have sustained injury to his lungs, vocal cords, and associated squamous cell carcinoma while working for defendant as a welder.  Defendant took the position that the injury was non-industrial because of applicant’s history of smoking and alcohol use.

The parties brought their dispute to a panel Qualified Medical Evaluator in the specialty of otolaryngology, who suggested that they go to an epidemiologist or oncologist.  For some reason, the otolaryngology PQME did not find that the other PQME, the internal medicine specialist/oncologist, was qualified to issue an opinion on the questions of causation and apportionment in this case.

The WCJ found the record to be insufficient, reasoning that neither PQME addressed the issue of industrial aggravation.  She specifically rejected defendant’s contention that she was acting “as an advocate for the injured worker.”

Your humble blogger will chime in with his own thoughts at this point.  It is not clear who filed the declaration of readiness to proceed, but in either case, the parties conferred at the Mandatory Settlement Conference and elected to proceed to trial.  Somehow, applicant must have thought that he could proceed to trial and win – otherwise he could have just told the WCJ at the MSC – we need to develop the record, further discovery is necessary.

But that didn’t happen.

Applicant proceeded to bite at the apple, and the defense was ready and prepared to litigate the case at trial.

What should have happened was one of the following: either the WCJ should have ruled that there was insufficient evidence from which to draw the conclusion that applicant had carried his burden of proving industrial injury, including causation, or the WCJ should have ruled that the burden had been carried, and let the defense challenge the ruling on appeal.

The WCAB should have found the same – that applicant decided to roll the dice and that the trial results should have stuck, one way or another.

Unfortunately, the WCAB did not take action on this one.  Oddly enough, the WCAB specifically stated that “defendant’s petition should be denied because it does not demonstrate significant prejudice or irreparable harm.”  But significant prejudice was demonstrated in the panel decisions of Bates and Elias.

It’s decisions like these that make your perceptive blogger skeptical when he hears of the need for “judicial economy.”  The WCAB could save the workers’ compensation system from having to have two trials and two appeals for every case by telling the applicants that they only get one shot (just like everyone else in the world).  Instead, by allowing applicants to “develop the record” after a trial, the WCAB commissioners are inviting more clogs in an over-clogged system.  Your humble blogger does not approve.

In any case, folks, keep your eyes open, because the WCAB might just be inclined to let the “develop the record” insanity continue.

Shouldn’t there be some distinction between evidence offered to prove an affirmative fact or element and evidence offered in rebuttal?  Not according to the army of judges in the case of Ace American Insurance Company v. Workers’ Compensation Appeals Board (writ denied).

Applicant Emil Sulek had claimed that his shoulder injury precluded various physical activities, but the defense attorney found a witness who was prepared to testify that he had seen Mr. Sulek exceeding his claimed limitations.

When the parties appeared at a status conference, the hearing was turned into an Mandatory Settlement Conference, they filled out a 5-pager, and set the matter for trial.  The defense attorney did not list this rebuttal witness, and had not previously turned over the statements of that witness to the applicant’s attorney.

At trial, after applicant testified, the defense sought to have the rebuttal witness testify as well, but this effort was thwarted by the workers’ compensation Judge, who described this as “ambushing applicant at the hearing.”

Defendant petitioned for reconsideration, but received no sympathy from the Workers’ Compensation Appeals Board.  Instead, an opinion detailing Labor Code section 5502(e)(3) was offered.

The Court of Appeal did not ride to the rescue either, declining defendant’s petition for a writ of review.

It appears that the workers’ compensation system is adverse to applicants being caught red-handed when they have testified to half-truths and full lies.

The WCJ described this as ambush, and in some senses it is – if you want to catch criminals in a sting operation, you have to lay out the bait and strike during the act.  In workers’ compensation, there is no effective way to do this if the defense must lay its rebuttal cards out on the table.  Many WCJs don’t want to see surveillance or sub rosa tapes either.

Well, it appears that it, once again, falls to your humble blogger to set the record straight on a few facts.  If you are for some reason under the age of 12, please stop reading at this point.

1)      There is no Easter Bunny;

2)      There is no Santa Clause;

3)      FROM TIME TO TIME, APPLICANTS LIE!

And when applicants lie, they lie to get more money, more time off work, and more drugs.  The only thing that keeps the applicants that are inclined to lie from lying, is the risk of getting caught, losing their claim and incurring some sort of penalties (usually criminal).  The liars will never stick their necks out and testify in open court if they know that rebuttal evidence is coming.

In as much as you adore your humble blogger, one can only hope that you will forgive the pun in today’s blog post title.

Applicant suffered a stroke while working as a journeyman screen printer in the case of Francisco Amaya v. California Printed.  Mr. Amaya was given the job of printing thirty six flags and a deadline of 1:00p.m.  The trial evidence differed on whether he was assigned this task at 8:00 a.m., allowing for five hours, or at 9:30 a.m., allowing for three and a half hours.  In any case, because of the “stressful working condition” of having to make so many flags to print in so little time, applicant suffered a stroke.  Also contributing to the stroke was the fact that he had stepped on a spray can, causing him to fall to the ground.  Sounds pretty bad, no?

Well, some facts might clear this up.  Applicant suffered his stroke a little before 11:00 a.m., and at that time had completed six of his assigned thirty six flags.  So, that means that he had between 1.5 and three hours to print the six flags, leaving another 30 to be completed by 1:00 in the afternoon.  How many flags could YOU print in that short a time period? 10? 20?  Well, if you’re one of applicant’s co-workers, it would probably take you thirty minutes, which is what it took another employee who was assigned the remainder of Mr. Amaya’s workload.  Not so much of a “high pressure” situation any more, is it?

Also, what may have contributed to the stroke was the non-industrial and untreated “hypertension, hypercholesterolemia, and diabetes” which applicant had at the time of the stroke.

So, here is what the panel QME did with this case:

1)      He ordered a CT scan of applicant’s head, because head trauma “could have been a precipitating or enhancing factor.”  Without having seen the CT scan results, eh concluded that applicant’s stroke was caused by 25% industrial factors and 75% non-industrial factors.  When he later saw that the CT scan showed no head trauma, he declined to change his opinion.

2)      He also found that his stroke could have been a reaction to stepping on a spray can, but if he did not step on the spray can, the PQME would not change his opinion.

Here is how your skeptical blogger reads these facts: “well, I’m not going to let these facts let this guy walk away from this thing empty-handed.”

The defense argued that the PQME’s opinions do not constitute substantial medical evidence – this lunacy of a medical opinion does not justify its findings and seems unmoved by any shifting facts.  So, what do you think the Workers’ Compensation Judge did with this?

The WCJ threw it out of her courtroom!  She found that the PQME “did not explain the bases for his opinion that Applicant’s work activities … constituted 20-25% of the causation of the stroke, irrespective of the pace at which Mr. Amaya was required to work.”  The injury was ruled non-compensable, and applicant’s request to take a second bite at the apple further develop the record was denied as the PQME “has been given ample opportunity, through the deposition process, to provide support for his opinions… [he] has not provided the necessary support, and … further discovery such as another deposition is not likely to yield a properly supported opinion.”

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration and incorporated the WCJ’s report.

Curious about this Northern California PQME who hands out causation like it’s candy?  Please shoot me an e-mail for the panel opinion: gregory@grinberglawoffice.com

This blog has covered some tactics that good defense lawyers can use to push back against the impairment inflation of Almaraz/Guzman. Sometimes, we even see A/G used to actually cut down the total impairment.  In the recent case of Malhotra v. State of California, Department of Developmental Services, the panel Qualified Medical Evaluator was not inclined to jump on the A/G bandwagon… and the Workers’ Compensation Judge would have none of it.

Applicant sustained an injury consisting of a laceration to the small finger of his hand, resulting in decreased range of motion and loss of sensation.  The panel QME found this to reflect a 2% whole person impairment.   The applicant’s attorney tried, unsuccessfully, to play the A/G tune for the PQME and get him to rate grip loss with or instead of the decreased ROM and loss of sensation.

But he wouldn’t budge – the PQME in this case manifested some strange and completely irrationally dedication to the truth and the honest evaluation of applicants.  The AMA Guides clearly state that, in the presence of reduced range of motion, grip loss cannot be rated.

In crafting the instructions to the DEU rater, the WCJ noted that the PQME “does not appear to be aware of the latitude he has,” and proceeded to instruct the DEU to rate grip loss.  The result, of course, was a 20% permanent disability rating.  On cross-examination, the DEU rater testified that he would not have rated grip loss, but would have instead rated applicant with 1% permanent disability, but the Judge’s instructions are the Judge’s instructions.

After the WCJ awarded applicant 20% permanent disability, defendant promptly and zealously petitioned the Workers’ Compensation Appeals Board for reconsideration.  On what possible grounds could an objection to the course of events be made?  Well, in the en banc case of Blackledge v. Bank of America (2010), the WCAB held that the physicians assess the injured employee’s whole person impairment, and the WCJ frames rating instructions.

According to the WCAB, the WCJ, in this case, was “again usurping the role of the physician in determining that applicant’s impairment should be based upon grip loss, rather than the factors he identified that comport with the AMA Guides.”   (To my dear WCJs out there, please recall, your humble blogger but reports these opinions, he does not draft them.  If he were free to draft binding opinions, there probably would be considerable cause to be very angry with what he had to say…)

The end result was a victory for the defense and for anyone interested in having a workers’ compensation system build on consistency and predictability – a scratch on your pinky does not render you only 4/5th of the worker you were.

A recent panel opinion discussed the issue of waiver in the context of workers’ compensation.  Your gadfly blogger will quickly run through the facts so he can begin yet another angry rant against the workers’ compensation system.  (The case is Israel Granados v. Barrett Business Services).

Applicant saw a number of treating physicians within defendant’s MPN for a variety of alleged injuries, including injury to the hand, arm, wrist, upper extremity, psyche, and in the forms of a sleep disorder and headaches.  So what’s the problem with humpty-dumpty?  He decided the treating physicians weren’t giving him a high enough rating and he elected to go outside the Medical Provider Network.

When the workers’ compensation Judge ruled that the extra-MPN reports were not admissible (see Valdez).  At that point, applicant demanded panels in various specialties, psyche amongst them, citing objections to the MPN treating physician reports.  This was a puzzling development, given that none of the MPN physicians had yet issued an opinion with respect to applicant’s psyche claim.

Defendant went along with the dance, striking one psyche qualified medical evaluator from the panel, requesting the remaining PQME address certain issues.  But, after reviewing the report, objected to the psyche QME as improperly obtained.  The WCJ and the Workers’ Compensation Appeals Board both found that defendant had waived his objection to an improperly requested panel (“we will deny reconsideration because by failing to object to the section 4062 and 4062.2 process until it was complete, the defendant invited any error and waived any objection.”)

The same treatment, however, does not often extend to applicants and their attorneys.  If you are reading this blog post somewhere with privacy, go ahead and raise your hand if you’ve had a Judge allow an applicant to get a second panel because he or she became represented after the first panel QME didn’t award total permanent disability for a paper cut, even after there was an evaluation and report.

This policy of waiver applies more evenly or fairly the higher one goes in the chain of appeal, but on the ground level, far too often there is leniency afforded to applicants and their attorneys that would get a defense attorney sanctioned.

In any case, the defense bar will just have to look at this as a training tool – under these conditions, we are always at our very finest in order to get the job done.

Word around the proverbial water cooler has it that Judge Gene Lam, of the San Francisco Board, is heading to Oakland to take over as presiding judge (effective April 16, 2012).  No doubt Judge Lam will be greeted every morning by the charming sight of Oakland’s finest protestors “occupying” Frank H. Ogawa Plaza (just yesterday morning, your ever-busy blogger witnessed city workers cleaning up the latest “art work” left behind by these fine, young people.)

In any case, WCDefenseCA congratulates Judge Lam on his new post and wishes him a smooth transition and a productive stay.

A recent split-panel decision served to caution workers’ compensation Judges against looking for facts outside of their hearing rooms.  Check underneath the chairs, look between the cushion seats, and, if necessary, place a “lost and found” box on your desk, but confine your search for the facts to the four walls of your hearing room.

In the case of Alfonso Ponce De Leon v. Barrett Business Services, the workers’ compensation Judge elected to do some investigating, calling several physicians in defendant’s medical provider network to determine if applicant’s claims as to their availability (or lack thereof) were true.  If this sounds familiar, it may be because you read a post, sometime ago, about a WCJ who did an internet search to get the background of a defense witness.

Basically, applicant claimed that defendant’s MPN did not provide any orthopedic surgeons, within a reasonable geographic area, willing to take workers’ compensation patients.  Applicant (and applicant’s attorney) would like nothing better than to free of defendant’s MPN and pick a treating physician with the appropriate outlook and sensitivity to applicant’s “position.”

To determine if the allegation of a hollow MPN was true, the WCJ did not instruct the defendant to obtain written declarations from each physician’s office listed or request that applicant’s attorney personally speak to each doctor’s staff to determine availability.  Instead, the WCJ took a list of six doctors listed in defendant’s MPN with the appropriate specialty and geography, and picked up a phone.

Two doctors he did not call at all, one did not answer, one declined to take any workers’ compensation patients, and the remaining two offered to do an initial evaluation and establish a treatment plan.  From this, the WCJ concluded that applicant was free to go outside of the MPN “based on the failure of the doctors within the MPN to accept the applicant for treatment.”

The panel did not take kindly to judicial investigation.  Let’s just say that, in the panel opinion, the Judicial Code of Ethics was mentioned.  Nor was the two-commissioner majority persuaded that the fruit of the WCJ’s poisonous tree justified the findings of fact.  Your blogger’s favorite quote?  “Additionally, failing to reach a physician’s office with a single telephone call does not establish the unavailability of the physician.”

The dissent pointed out that the defendant had not raised the issue of the WCJ’s phone calls in its petition for reconsideration.  Also, the dissent interpreted the WCJ’s investigation as merely assisting the applicant in finding a treating physician.

If these were the WCJ’s intentions, circumventing the present conflict by bolstering applicant’s phone inquiries with the booming voice of the Board, then perhaps the action was noble… but no less inappropriate.  If the WCJ did not find applicant credible with respect to his claims, or found his claims unsupported, then such a finding should have been reflected in the conclusion of the proceeding.  But the WCJ did not take applicant at his word.

Defendant’s petition for reconsideration was granted.

Are you tired of the seemingly powerless life of a workers’ compensation defense attorney?  Do you grow weary of pitting workers’ compensation Judges against commissioners, and commissioners against Court of Appeal Judges in a desperate effort to secure some tiny sliver of justice for you client?  Perhaps it’s time you took up the gavel yourself and stemmed the flow of blood being drained from the veins of California’s employers.

No, I’m not suggesting we form some sort of vigilante workers’ compensation Board or somehow privatize the Workers’ Compensation Appeals Board (oh, if only!).  As a matter of fact, after discovering a surplus in the pension budget California is looking to hire some more judges.   But you better hurry – the deadline is, in a gentle nod to that secret spot in our hearts that is home to the more romantic things in life, February 14th.

The venues are San Jose, Marina Del Ray, and Long Beach.  Benefits include the use of two flat-screen monitors in every courtroom, the endless droning of lien claimants, the threat of removal or reconsideration at every step, and semi-celebrity status when you suffer occasional ridicule on this blog.

But, do not get your hopes ups – with a 1/31 post date and a 2/14 deadline, I’m guessing there are already some candidates in mind; but what does a private-sector-dweller like your speculative blogger know?

Good luck!

Dear readers and brave citizens of California’s Workers’ Compensation system… it’s time for a self-check.  For all the fresh feel and sweet taste this blog offers, one can’t help but be tainted with some residue of that substance known as cynicism.  So, now that you’ve all been reading for so long, it’s time to see if you’ve become borderline cynics like your faithful blogger.

So this is how the test works:  I will lay out some simple facts of a case, and you guess whether the Workers’ Compensation Judge found the injury compensable.

Applicant butcher files a claim for a specific injury and a cumulative trauma, the specific having been allegedly sustained in April of 2009, and the cumulative trauma allegedly spanning the time from April to August of 2009.

The injury was denied by the defendant, and at trial applicant testified that she (1) didn’t remember seeking treatment before August 2009 and (2) didn’t remember reporting the injury or telling anyone about it before August 2009.

Applicant’s supervisor testified that applicant had shown no sign of any injury prior to August of 2009, and that applicant missed no work during that period either.  However, the supervisor also testified that in mid-August, the employer instituted a new policy, prohibiting employees from eating behind the deli counter, and applicant told him that she “felt singled out and that she was going to sue her employer.”

At her lunch break, applicant left work and never came back…

So, dear readers… did the WCJ find the “injury” compensable?  I’m sorry to tell you, you must choose between being wrong or being a cynic.  The WCJ found the injury compensable.

In the case of Denise Hernandez v. Big Buy Food, the Workers’ Compensation Appeals Board granted Defendant’s petition for reconsideration, finding that “the overwhelming weight of the evidence [indicated] that applicant did not sustain an injury.”

Time and time again, experience shows us that California Workers’ Compensation Defense practice requires one eye be kept on the Appeals Board deadlines for filing a Petition for Reconsideration when heading to trial.

Are you tired of locking down evidence at the Mandatory Settlement Conference, proving your case at trial, and then being told to start over again by “developing the record?”

Again and again, California Workers’ Compensation defense attorneys witness judges helping applicants take a second or third shot at the target, often being told specifically what evidence needs to be added to the second trial to justify an award (or a bigger award).

Two recent Workers’ Compensation Appeals Board panel decisions seem to be starting the trend away from this practice.

In the cases of Bates v. Valley Vintners Wine Company (2011) and Elias v. Saticoy Lemon Association (2011) [Full disclosure: the former case was handled masterfully by Thomas J. Harbinson and Laura K. Lachman] the panel put a stop to this “develop the record” trend.

In Bates, after the MSC and trial, the Workers’ Compensation Judge disregarded defendant’s references to apportionment evidence and the rater’s use of an incorrect occupational group number for the applicant, finding him permanently and totally disabled based solely upon the Le Boeuf expert’s independent opinion without backup support.

Following defendant’s petition for reconsideration, the WCJ rescinded the Findings and Award, and instructed the parties to appear for further trial proceedings to “develop the record” to allow additional testimony from applicant’s vocational rehabilitation expert on the issues of “vocational feasibility, labor market survey, and/or necessity for vocational testing.”  Defendant responded by filing a petition for removal.

Citing Labor Code § 5502(e)(3), the WCAB held that discovery closes at the MSC.  Furthermore, once “the record is supported by substantial evidence from which a decision can properly be made, there is no basis to order development of the record.”  (Citing San Bernardino Community Hosp. v. Workers’ Comp. Appeals Bd.)

Similarly, in Elias, the WCJ vacated the submission of evidence and ordered development of the record on the issue of causation, also demanding the production of an additional opinion from the treating physician.

Defendant petitioned for reconsideration (which the WCAB held was improper, and instead ordered removal).  The WCAB again held that, absent a “showing that there was evidence applicant could not have discovered or obtained in the exercise of due diligence prior to the MSC,” Labor Code § 5502(e)(3) [the statute is erroneously cited as (d)(3) in the opinion] prohibits the admission of new evidence.

My favorite quote from the Elias opinion?  “In ordering parties to obtain [additional evidence] the WCJ is, in effect, doing applicant’s attorney’s job.”

Both WCJs were instructed to issue a decision on the present record.