Tag Archives: Burden of Proof

WCAB: Develop the Record on Covid19 Claim

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Happy Wednesday, dear readers!

We are powering through March and, if you’re like me, you’re still reeling from daylight saving time shift that occurred earlier this week. 

You know what’s special about March?  It’s been roughly three years since the lockdowns began.  So what better way to commemorate three years since the world turned upside down than with a COVID workers’ compensation case?

That case is the panel decision of Dawson v. Patton State Hospital.  Therein, following a trial, the WCJ concluded that applicant failed to carry her burden of proof of establishing industrial causation on COVID19 infection.  After returning from a non-work trip in March of 2020, applicant engaged in union activities and reported for work on March 17, 2020 with symptoms of a sore throat.  On March 28, 2020 she tested positive for COVID 19 based on a sample taken the prior day.

In reviewing the WCJ’s decision, the WCAB noted that the presumptions of industrial causation found in Executive Order N-62-20, later to be codified as SB1159, did not apply as applicant last worked on March 17, 2020, and the executive order applied for employees who worked on or after March 19, 2020.

What a difference a day makes, 24 little hours… (sing that one twice!)

Spoiler alert… the WCAB reversed the finding of no industrial causation.  But how? 

The WCAB noted that there was a dispute as to when the infection occurred as between the QME and the PTP.  The QME opined that the exposure likely happened during the non-work trip, while the PTP opined that the symptoms appear 2-14 days after the infection, which would rule out her trip as the exposure point.  Is the development of more severe symptoms the trigger for infection, or the milder symptoms applicant had after returning from her trip?

The WCAB ordered the parties to return to the trial level to further develop the record on whether the initial symptoms (sore throat) were the sign of COVID infection or the more severe symptoms to establish the date of infection.  The WCAB also provided guidance that applicant need not prove the exact time she became infected, but only if her work activities caused her to have higher risk than the general public of contracting the disease.

Your humble blogger, however, would submit that there is another point which the WCAB did not appear to consider: applicant’s burden of proof.  Applicant has one bite at the apple to establish initial causation and developing the record is not appropriate when applicant failed to establish AOE/COE.  If applicant fails to carry her burden at trial as to causation, the case should be done with an order to take nothing.

In litigating these cases, particularly when none of the COVID19 presumptions apply, defendants would be well served shooting for disproving causation, rather than merely pointing out that applicant has the burden of proof.  Since justice moves slowly, we are likely to continue seeing these cases reach the WCAB to address causation on COVID19.

Much like the Starks of Game of Thrones chant “Winter is Coming,” so too the motto for California workers’ compensation is “Reform is Coming.”  Every now and then, we see another attempt to fix the system.  Perhaps the defense community should add to its wish-list for the next reform a stricter standard for “developing the record,” particularly when AOE/COE is in dispute.

No Lien Recovery on Unpleaded Body Parts

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Happy Monday Dear Readers!

Pop quiz for you – does a body part have to be plead or claimed by an applicant in order for him to receive medical treatment for that claim?

We touched on this a bit in an earlier blog post where a lien claimant psychologist could not recover when the application never alleged psyche as part of the claim.  Well, the same result was reached in the panel decision of Jiminez v. Yang Wu International Inc.  Lien claimant sought recovery for dental medical treatment, but applicant never alleged dental/jaw/tooth injury, although he did claim injury in the form of various orthopedic and respiratory conditions.

A C&R was reached and approved by a WCJ but there was no dental injury plead in the original application nor in the C&R.  The WCJ found no liability on the part of defendant for the dental medical services, and the lien claimant appealed.  In affirming the WCJ’s ruling, the WCAB noted that the underlying medical report did not address why the dental medical treatment “was reasonably required to cure or relieve applicant from the effects of his industrial injury.” 

Central to this reasoning was that the lien claimant bore the burden of proof, and merely showing that medical treatment was provided is insufficient. 

The WCAB rejected the theory advanced by the lien claimant that the (alleged) fact that “defendant had notice of the claim of dental injury” was in any way relevant to the analysis. 

The reasoning is sound, of course, but imagine if a contrary finding was reached: the mere existence of an industrial injury would render the employer liable as a general health insurer for anything and everything that ailed the injured worker.  Would an admitted back injury give rise to liability for orthosis for a pre-existing hand injury? 

Aside from the good result for the defense, this case is a valuable reminder to us all that pleadings matter and should be examined in detail, both at the inception of the case and in contemplating which body parts to include in the C&R.

WCAB: Applicant Failed To Carry Burden on New and Further

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Happy Monday dear readers!

I don’t mind sharing with you that not much warms the cold, dark heart of a workers’ compensation defense attorney like the proper application of the statute of limitations.  Isn’t it enough to bring a tear to one’s eye?  This is particularly the case when a petition to reopen for new and further disability is denied on those very grounds.

New and further petitions are those frustrating things in our beloved swamp of workers’ compensation that can drive a person mad.  After all, even when you’re done with a case… you’re not really done.  One can picture Michael Corleone receiving a petition to reopen and saying boldly to the camera “Just when I thought I was out… they pull me back in!”

Well, allow me to submit to you the panel decision in the case of Rodriguez v. Southland Care Center.  There, applicant resolved her workers’ compensation claim for a 2008 injury via stipulated award, only to reopen it in 2013.  The original injury was orthopedic in nature as to the left foot, bilateral ankles, left knee, left hip, low back, and psyche. 

A true testament to the longevity of these claims that 14 years later litigation is ongoing.  Can you picture a father sitting at a conference room table with his daughter, lovingly handing over a file… “I received this referral when you were just starting high school, and now that you’ve finished law school, I can pass this on to you.”  Such moments really are what parenting is all about. 

Well, as parties tend to do, they returned to the AME who determined that the industrial condition was stable and unchanged from the prior P&S report.  But applicant had arguments of her own to push the petition: the AME did not order any diagnostics, so his report can’t possible be substantial medical evidence… and what about her diabetes that was aggravated by her condition? And what about her right knee surgery in 2014?

Well, after discovery and trial, the WCJ dismissed the petition to reopen, reasoning that the medical reporting from treating physicians ostensibly supporting additional disability (particularly as to the diabetes) was not obtained until AFTER the five years from the original injury had run.  In short, even if applicant testified to existing complaints prior to the five-year mark, the medical evidence supporting that contention was not obtained until after the statute had run.  Nor is there any absolutely requirement to obtain testing if, in the opinion of the medical expert, that testing is not necessary.

Can you imagine, dear readers, if a medical report for an industrial paper-cut was held to be not substantial evidence because there was no MRI of the finger ordered?

In upholding the dismissal, the WCAB held “[a]n injured worker cannot confer jurisdiction on the WCAB by filing a petition to reopen before the five-year period has expired for anticipated new and further disability that may occur after the five-year imitation period has run.”  There was no evidence in existence prior to the 5-year mark that the right knee was part of the claim, whether as an original injury or a compensable consequence.  There was further no evidence that the diabetes was related to the industrial injury or that the disability arose within five years from the original injury. 

Despite what so many applicant attorneys would love for us all to forget, the applicant still bears the burden of proof on many aspects of his or her workers’ compensation case.  Among those, that there is new and further disability – merely filing a petition does not shift the burden to the defense to disprove new and further disability.  How silly would it be, dear readers, if the filing of a defense petition to reduce permanent disability would shift the burden to applicant to prove no improvement?

Additionally, it is important to remember that even if a petition is filed four years and 364 days after the original date of injury, that is not the time for applicant’s counsel to roll up his or her proverbial sleeves and go trolling for evidence: the evidence of new and further disability must exist prior to the five-year mark.  Not all of it, mind you, but enough contemporaneous evidence for a subsequent med-legal to find the disability existed prior to the running of the statute. 

Not a bad way to start the week, dear readers.  Straight on till Wednesday!

WCAB Rejects Psyche PD; Lays Burden on Applicant

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Here we are dear readers! Rounding out another week and welcoming the first Friday in June.

Your humble blogger knows that you’re one foot out the door to start the weekend, but has a quick blog post to offer you before you do just that: the panel case of Sosav. Race Engineering, Inc.

Applicant claimed injury to his hand, psyche, intern system, skin, gastrointestinal system and sleep as a result of an admitted injury, but defendant only accepted the hand.  The parties proceeded to trial and the main issue that went up on appeal is whether psychiatric permanent disability was compensable and could be combined with permanent disability for the hand injury.

So a bit of background – as we all know from studiously reading this most humble of blogs, in 2013 the California Legislature enacted SB863 which added Labor Code section 4660.1, incorporating the following language in 4660.1(c)(1): “Except as provided in paragraph (2), there shall be no increase in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination therefore, arising out of a compensable physical injury.”

However, in January of 2020, section (c)(1) was amended to reflect “the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase.”

So we went from “there shall be no increase in impairment rating” to “shall not increase.”  Applicant’s counsel in the Sosa case took the position that this amended reflects that impairment ratings for those conditions shall not be increased by a factor of 1.4, and orthopedic injuries shall, so PD for psyche is recoverable as part of the 2020 amendment to Labor Code 4660.1.

The trial judge and the WCAB were not persuaded.  Looking at the Legislative Counsel’s digest on the amendment, said amendment was described as making “nonsubstantive changes.”

Applicant also argued that the psychiatric condition was what is colloquially called a “pure psyche” claim, resulting from the mechanism of the orthopedic injury rather than a compensable consequence.   The WCAB rejected this as well as the reports in the record acknowledged predominant industrial causation, but did not specify if that causation was a compensable consequence or directly from the result of the mechanism of injury. 

As such, the claimed additional permanent disability for the psychiatric condition was not awarded.

All in all, a good result, no?

So, what can we take away from this as the adventure of Friday night is calling to us?

Based on the Sosa decision, it appears that the amendment to 4660.1 is “nonsubstative”, meaning that we still do not allow increases in PD for compensable consequence psyche cases other than for narrow circumstances (such as violent acts). 

Also, it is applicant’s burden to prove that the psychiatric condition is not only predominantly caused by actual event of employment, but it is likewise applicant’s burden to prove that the psychiatric condition is predominantly caused by the mechanism of injury, rather than a compensable consequence of an orthopedic injury.  We can also infer from the Sosa decision that, at least the Sosa panel, was not inclined to order further development of the record in this case.

Have a great weekend, dear readers!