Duty To Develop Record Even After Conference

This case is not published and therefore, not citable in judicial actions. However, the cases it cites and relies on are citable. Therefore, the proposition is a valid argument.

The applicant had and admitted specific injury and cumulative trauma.  The parties agreed on three agreed medical examiners (AME’s). There was an AME for orthopedic, voice, and psyche. The psychiatrist wrote supplemental reports over time and concluded that the applicant’s condition could improve or worsen.  The psychiatrist indicated that the applicant needed continuous treatment.

The employer filed a declaration of readiness to proceed (DOR). The matter was set for a mandatory settlement conference (MSC). At the M S C the applicant objected to the case being set for trial because the applicant was requesting vocational rehabilitation. The applicant was contending that if the applicant was incapable of being retrained, then under the theory enunciated in LeBoef v WCAB, 48 CCC 587, the applicant’s permanent disability may be effected by the failure to be retrained. The workers’ compensation judge (WCJ) set the case for trial due to the aging of the medicals.

At trial the parties stipulated that the applicant had requested VR. The case was submitted and the WCJ awarded the applicant 83-3/4 percent permanent disability based on the opinion of the AME’s.

The applicant petitioned for reconsideration and to stay the permanent disability award on the basis of newly discovered evidence. The applicant relied on Labor Code section 5903 (d) for the proposition that a new medical report that was being obtained after the trial would change the applicant’s permanent disability award.  The WCJ indicated that the applicant had not objected to the DOR or raised the LeBoef argument at trial. The WCAB adopted the WCJ’s findings in denying reconsideration. The applicant filed for review contending that the WCAB should apply LeBoef and Tyler v.  WCAB, 62 CCC 924. In Tyler the appellate court determined that the WCAB may develop the record at any time in the proceedings.

The appellate court in this case looked at the case law related vocational rehabilitation and permanent disability. The appellate court stated that the new medical report was considered new evidence by the WCJ and therefore, the WCJ had a duty to develop the record under the Tyler decision.

This case creates another loop hole in the doctrine that discovery is cut off at the MSC. It can work equally for both sides. Tyler and its progeny have now created many loopholes in the legislation that was supposed to end discovery at the MSC.

Exaggerated Complaints Can Be Viewed As Fraud

In a case of first impression a California appellate court has ruled that when a worker’s compensation applicant exaggerates about the level of pain the applicant is experiencing and knows this statement to be false, the applicant can be prosecuted for fraud.

The applicant sustained a work related injury to his back while working as a truck driver. The applicant received an award which included lifetime medical care. Seventeen year after the injury the applicant asked for in-home attendant care based on the request of a treating chiropractor. The carrier provided care and his girlfriend was designated his care giver.

Defendant eventually arranged an orthopedic exam, applicant showed up for the exam using a walker and told the physician he was experiencing severe pain and could not care for himself. The doctor could find no objective basis for the amount of pain the applicant was claiming. The carrier ceased paying for the in-home attendant care. The applicant asked for a hearing before the Worker’s Compensation Appeals Board (WCAB).

At the hearing the applicant described his level of pain and level of activity.  The girlfriend care giver described the level of care she provided with the use of a daily log she maintained.  Apparently the evidence showed significant discrepancies in the testimony.

The applicant was prosecuted for fraud under insurance Code section 1871.4  (a)(1). The applicant contended he did not violate this statute because his complaints about the level of pain were mere statements of opinion, rather than fact. The applicant contended that a conviction of fraud required misstatements or knowingly false statements of fact and not opinion.

The appellate court disagreed with the applicant. The court indicated that even if all the applicant did was exaggerate his complaints this was sufficient for a conviction.  The applicant was also prosecuted for perjury. The prosecution alleged the applicant made 13 false statements at the WCAB hearing. The applicant defended by stating that two of the statements were matters of opinion which could not support a perjury conviction. The appellate court disagreed with the applicant. The court stated opinion testimony can be perjury if the applicant does not honestly hold the opinion to which he testifies. The court stated “ the distinction between fact and opinion is one without a difference. Even if the appellant’s statements to the insurance company, Dr. Ovadia and the WCAB were statements of opinion rather than fact, the jury impliedly determined that the statements were false because appellant did not honestly hold those opinions.”

Precautionary Future Medical Award May Be Terminated After 5 Years

A Stipulation with Request For Award contains a section at the bottom of the first page that deals with future medical care. The parties are presented with three choices. The parties can stipulate that there either is need for medical care, may be need for medical care, or no need for medical care. If the middle alternative is chosen this may result in future problems for both parties.

The applicant had an industrial injury in 1981. The parties stipulated to 6-1/4 percent permanent disability and there might be need for future medical care. This stipulation resulted in a precautionary or provisional award of medical care.

The applicant subsequently filed new cases against a different employer after five years had elapsed on the 1981 award. The 1981 award was not reopened within the five years permitted for doing so. The applicant at the time of the subsequent injuries to different body parts wished to find out if medical treatment was still needed for the 1981 injury. The parties went to an Agreed Medical Examiner (AME) for that purpose. The AME determined the applicant needed no further treatment for the 1981 injury.

The defendant for the 1981 injury filed a petition to terminate medical care for that injury. The Workers’ Compensation Judge terminated medical care. The applicant filed a Petition For Reconsideration which was denied. The applicant then filed for a Writ of Review. This appellate court found that medical care could be terminated more than five years after the date of injury.

This court concluded that where the parties stipulate there may be need for medical care this is termed a precautionary or provisional award.

Labor Code section 5804 states an award cannot be rescinded, altered, or amended more than five years from the date of injury. However, they cite cases for the proposition that a petition to enforce a medical award is not a petition to modify, alter, or rescind. The Appellate Court looks to section 133 for authority to do any and all things necessary to enforce an award.

The appellate court differentiated between a lifetime award and a may be need for future medical care. The inference in a may be need is that there is an unequal inference that there may not be such a need, Therefore, the employer has the right to enforce the award by filing a petition to terminate after five years.  This is considered a request to enforce the award. A continuing award is not final. A precautionary award can be terminated if the employer can show the need for treatment has definitely ended.

Voluntary Resignation Is Not Considered Termination

Numerous people have felt that when an applicant voluntarily resigns from employment and then claims a work related injury this would be governed by Labor Code section 3600 (a) (10). An appellate court has indicated that this section does not cover voluntary resignations.

The facts were apparently undisputed. The applicant was a truck driver. The applicant had a motor vehicle accident in the course and scope of his employment in August 1996. He reported the accident to the employer apparently at that time. What the facts don’t tell us is if the applicant claimed any injuries at that time. The facts do not state the applicant was given a claim form at the time of the accident.

The applicant voluntarily quit his employment in September 1996. The applicant apparently filed an application for adjudication of claim in June of 1997. This was ten months after the alleged injury and nine months after he voluntarily quit his job. This is the first time he alleged injury to his back from the August 1996 injury.

The Workers’ Compensation Judge (WCJ) did not find the applicant to be a credible witness in regards to the accident or the industrial nature of his injuries. Obviously, the WCJ was considering that the alleged back injury was being claimed ten months after the injury. The facts do not disclose if the applicant ever saw a physician for his alleged back injury during those ten months. The WCJ denied benefits solely on the basis of 3600 (a) (10). The WCJ relied on the phrasing in the statute that says post termination “including voluntary layoff “. The WCJ believed that the section did not only apply to employer terminations or layoffs but also if the employee voluntarily resigned. The Workers’ Compensation Appeals Board did not agree with the WCJ.  The Board concluded that the statute did not apply to voluntary resignations.

The appellate court on appeal looked to the plain meaning of the statute itself. The appellate court reasoned that the essence of the statute dealt only with employer-initiated separations of employment. Since the statute did not have any references to employee-initiated separations the appellate court reasoned that employee-initiated separations were not meant to be part of this statute.  The appellate court finds that the statute does not cover employees who voluntarily resign. However, they did add parenthetically that they express no opinion on resignations which are constructive firings. It is assumed they are referring to the situation where the employee is given the prerogative to voluntarily resign before termination proceedings are initiated.

Psychiatric Injury May Result From Physical Injury

The California Workers’ Compensation Reporter provided a synopsis of Board panel decision in the July 1999 edition. The opinion is a Decision after Reconsideration and can now be cited because it was in the Reporter.

The applicant had an admitted back injury. The applicant was paid temporary disability. The applicant entered a vocational rehabilitation program. The applicant asked to interrupt vocational rehabilitation services because the applicant was hospitalized with suicidal ideation.

The applicant filed an application alleging that the psychiatric condition was a compensable consequence of the admitted back injury. A hearing was held before the Workers’ Compensation Judge (WCJ). The applicant testified that prior to the injury she had psychological counseling for childhood molestation.  Reports from two psychologists stated that the applicant was temporarily disabled due to depression. One psychologist indicated that the loss of hope in vocational rehabilitation precipitated her hospitalization, but was not the preponderant cause of her psychiatric illness. The original treating psychologist stated that her inability to be employed may have contributed to her depression.

The WCJ found no compensable psychiatric injury. The WCJ reasoned that Labor Code section 3208.3 controlled and that the applicant must prove that the back injury was the predominant cause of her psychiatric disability. Applicant filed a Petition for Reconsideration.

A Board panel of two Commissioners determined that 3208.3 is not applicable to a psychiatric injury that is a direct result of a physical injury. They reviewed the history of 3208.3 in their decision. They commented on the fact that in 1993 the section deleted reference to the sentence that commented on psychiatric injury which is the consequence of a physical injury. They indicated that the elimination of this sentence was not intended to do away with psychiatric injuries as a consequence of a physical injury.

The panel concluded that Labor Code section 3208.3 is not applicable to psychiatric injuries alleged as a consequence of a physical injury. The panel remanded the case to the WCJ but stated that the WCJ may find the psychiatric injury a compensable consequence of the physical injury if there is substantial evidence to support such a finding.

The key to these types of cases if this decision is followed will be in which medical report or side has the substantial evidence.

Biggest Discovery Case Of The Century Decided

It has been standard practice for workers’ compensation defense attorneys to ask general past medical history questions in depositions of the applicant. That practice of asking those types of questions in a deposition may now be a thing of the past.

The applicant in this case filed a claim for carpal tunnel injury. The carrier sent the applicant to a physician for an evaluation. The applicant told the doctor her condition was caused by her employment activities. The applicant claimed to do a prolonged amount of writing, more than 50% of her work day. The doctor indicated that her past medical history was unremarkable, although she did have a history of thyroid disease. The doctor indicated more tests were needed because if the test indicated any evidence of a peripheral neuropathy that would rule out industrial causation. If the testing shows carpal tunnel there would need to be additional thyroid testing to see if there was hypothyroidism. The record is not clear whether this testing was accomplished.

The defendant took the applicant’s deposition. The defendant asked a question related to the applicant’s past medical history. The applicant’s attorney objected on the basis the question invaded the applicant’s medical privacy and patient-physician privilege. The applicant’s attorney instructed the defense attorney to ask questions related to the current claim but that he would instruct the applicant not to answer past general questions.  The defense attorney ended the deposition and indicated the remainder of the deposition would be set before the workers’ compensation judge (WCJ).

The defense noticed the deposition before the WCJ. The WCJ issued an interim order and allowed the questions to be asked. Applicant’s attorney then filed a petition for removal. The WCJ filed a report and recommendation on petition for removal which the Workers’ Compensation Appeals Board adopted. The applicant then filed a petition for appellate review.

The appellate court reviewed Britt v.  Superior Court. Relying on Britt this court intimated that discovery procedures must be used that identify and remove irrelevant and immaterial issues. Questions must be tailored to avoid disclosure of protected records.  In this case the appellate court indicated the defense doctor narrowed the scope of the discovery to something far less broad than the defense attorney sought in the deposition.

This case has significant impact. An applicant’s attorney can stop general past medical questions even though this may go to the issue of apportionment. The key to the defense is to have the defense doctor indicate the need for all medical evidence that the applicant may have had a prior work preclusion which the doctor might be able to apportion to even if it is related to a different part of the body.

Personal Comfort Doctrine May Apply To Morning Break

A recent non published opinion is probably more important to employers than to the workers’ compensation community. This appellate court decision dealt with a compensated morning break.

The applicant was paid by the hour by her employer. The conditions of her employment were that she was compensated for two breaks during the day but was not compensated for her lunch. The applicant punched a time card upon arriving at work, at lunch time, and before leaving work each day. Her hours were from 8:30 a.m. to 1.00 p.m. and from 2:00 p.m.  until 6:00 p.m. Her uncompensated lunch break was from 1:00 p.m. until 2:00 p.m..

On the date of injury the applicant was very busy. She was unable to take her morning break at the normal time. She delayed her morning break until 12:45 p.m. She felt she would take her morning break in conjunction with the lunch hour. She went to the restroom to change clothes so that she might get some exercise by taking a walk. While she was untying her shoes she felt pain in her back. She finished changing her clothes and then punched out. She took some Advil. She then changed back into her uniform and punched the time clock to resume work.

The Workers’ Compensation Judge (WCJ) determined at a hearing that the injury was industrial because the state law requires a paid break in the morning and afternoon. Even though the applicant testified she was going to “work out” the WCJ determined she was still “on the clock” at the time of injury. Therefore, the injury did arise out of the employment and in the course of employment under the “Personal Comfort Doctrine”. The Board reversed the WCJ on Petition For Reconsideration and this appellate court reversed the Board.

The court cited other cases stating “(A)cts of the employee for his personal comfort and convenience while at work, such as taking a drink of  water, lighting a cigarette, warming himself, etc., do not interrupt the continuity of employment, and this exception is not limited to acts performed on the employer’s premises.”

“Under the ‘personal comfort’ doctrine, “the course of employment is not considered broken by certain acts relating to the personal comfort of the employee, as such acts are helpful to the employer in that they aid in efficient performance by the employee.” Therefore, this was found to be a compensable injury.

The question for employers to ask their corporate counsel is whether they can legally limit the types of activities an employee may engage in during compensated breaks. If they are permitted to limit these activities the limits should be made known to employees through an employee handbook.

Consultative Rating Relied On Over Summary Rating

An appeals court has explained the difference between the various alternative forms of rating. The court indicated that formal ratings will take precedence over earlier ratings.

The applicant had two specific injuries and one cumulative trauma that were all admitted injuries by the carrier. These injuries occurred in 1991 and involved the upper extremities and the right leg. The applicant acted in pro.per. A three-panel qualified medical examiner (QME) report was obtained in 1994. The applicant became represented and asked for a summary rating on the QME report. The summary rating was for 45.5 per cent. Neither party objected to this rating determination. The case was not settled on this rating and subsequently went to trial. The judge obtained a new rating. The rating based upon the judge’s instructions to the rater was 30.5 per cent. The applicant appealed.

The court of appeal indicated that prior to April 25, 1991 section 9738 allowed for the following types of ratings: (1) formal ratings; (2) pretrial evaluations; (3) informal ratings; (4) consultative evaluations: and (5) compromise and release evaluations. After April 25,1991 the law provides for (a) formal rating determinations, (b) summary rating determinations, © consultative rating determinations, and (d) informal rating determinations (section 10154).  The applicant wanted the higher rating of 45.5 percent which the court stated would have been a consultative rating because it was requested prior to the filing of a “Declaration of Readiness” to proceed. The court indicated that under former section 9758 this rating is not admissible. Consultative or summary ratings are not admissible in judicial proceedings.

Currently, except for “formal ratings” under section 10154, all other ratings are essentially informal and not admissible in judicial proceedings.  Instead, these informal ratings are for assistance in reaching or reviewing settlement agreements, not for resolving disputes or issues… in a trial.

The court indicated that summary, consultative, and informal ratings are to help the parties try and settle the matter. Only formal ratings are deemed to “constitute evidence” of the percentage of permanent disability (See section 10158). Once the matter goes to a contested trial all the prior ratings will become irrelevant and not be admissible or used as evidence in the proceedings.

The applicant further objected to the rating on the basis that the judge did not instruct the rater to use the work preclusions in the QME report, but to rate on the objective and subjective ratings of disability. The court found the rater performed his duty correctly and followed the judge’s instructions.

No Limitation On Type Of Income For Death Benefits

The issue of determining partial dependency in a death case has been hard to determine for many years.  The California Supreme Court finally has put this issue to rest. This case was first determined by the court of appeal in 1990. It has been upon appeal since then and reported previously in this newsletter.

The applicant was exposed to asbestos from 1951 through 1975.  He filed a claim for workers’ compensation benefits and was given an award of 63 per cent for the asbestosis injury. In 1987 the applicant died from mesothelioma and the widow filed a death claim. In the first appellate case it was determined that the date of injury determines benefits not the date of death. Mesothelioma was considered a different injury than asbestosis. A single period of exposure can result in more than one occupational disease and more than one date of injury. The case was remanded for the dependency issue.

Death benefits deal with either total or partial dependents. Partial dependents have other means of support other than relying on the decedent. The issue revolves around whether the dependent relied on the decedent for support.

Partial dependents are determined at the time of injury not at the time of death. Be aware these dates can be years apart. The time of injury also controls the statutory rate of the death benefit. For occupational diseases the time of injury is the date when the employee suffered disability and either knew or should have known the disability was caused by present or past employment. Latent diseases can develop years after retirement.

The person claiming partial dependency must prove the actual dollar amount actually devoted by the decedent to his or her support. It is the amount of annual support to the dependent that controls the calculation of death benefits. This is to be calculated by identifying the support at the time of injury that terminated with the death of the decedent. You do not determine support at the date of death unless it is the same date as the date of injury.

The Supreme Court determined that income includes all income from whatever source. Income does not just include earnings from employment. Income can include interest, dividends or rents received.  There is no qualification on the type of income. Thus, even though some income may cease at the time of death this has no bearing, since the income at the time of injury controls.

This will require a thorough history to determine date of injury on every one of these cases. It will also require a deposition of the partial dependent.  There is a dissenting opinion by Justice Mosk with Justice Chin concurring.

Applicant Is Not Entitled To T. D. After Retirement

An applicant may not be entitled to temporary disability benefits after retirement if the applicant has a zero earning capacity.

The applicant had an industrial injury in May 1995. The applicant had surgery in June 1997. Temporary disability was paid to the applicant up until August 10,1997.  This was the applicant’s 65th birthday and the date on which she intended to retire. The workers’ compensation judge found that the applicant’s average weekly wage for purposes of temporary disability were zero after August 10. The applicant filed a petition for reconsideration and the Appeals Board agreed with the workers’ compensation judge.

The appellate court indicated that temporary disability benefits are two-thirds of the applicant’s average weekly wage. Average weekly wage is determined under Labor Code section 4453. The first three provisions, of section 4453 deal with situations that truly reflect earnings at the time of injury. The fourth provision in 4453 deals with irregular or other situations where the other three provisions of 4453 would not yield a fair result. This provision would require an estimate of earning capacity from all relevant circumstances, not just past earning capacity. The elements of earning capacity include ability to work, willingness to work, and opportunity to work.

The appellate court distinguishes determining the amount of benefit for temporary and permanent disability. For temporary disability you must focus on whether the applicant would have continued working at a given wage for the duration of the disability. Thus, if the employer continues to pay the injured worker in excess of the injured workers temporary disability rate mere is. no wage loss, and thus no temporary disability due the injured worker.  The court indicated that retiring after sustaining a job-related injury does not change the general principles. The question is still earning capacity. The decision to retire implicates the willingness to work in the earnings capacity calculus. The primary factual component of the analysis should be whether the worker is retiring for all purposes, or only from the particular employment. If the applicant is retiring for all purposes, then the worker cannot be said to be willing to work, and earnings capacity would be zero. The main question is whether the injury caused the worker to retire or the injury interfered with the workers plans to continue working elsewhere, then the injured worker cannot be said to be unwilling to work.

The answer would appear to be to pin the applicant down in a deposition. If the applicant indicates that they would have retired irrespective of the industrial injury than temporary disability would not be due after the date of that retirement.

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