A Writ Denied Case Provides A Good Review Of 3 Concepts

This newsletter usually only deals with appellate court cases. Once in a while a Writ denied case will be significant enough for the editor to discuss. However, the current issue of the newsletter chose a Writ Denied case that provides a good review and refers to appellate decisions.

The applicant was a truck driver.  While making a delivery he was arrested. At the time of the arrest the applicant injured his right shoulder.  The carrier provided benefits based upon a specific request from the employer to accept the claim.

The insurance carrier hired an investigator who obtained witness statements within the 90 days required by Labor Code section 5402. Labor-Code section 5402 requires the defendant to deny liability within 90 .  days or the case is presumed compensable. In this case the carrier did not obtain the police report within the 90 days.

After the 90 days elapsed the carrier received the police report and denied liability on the basis the applicant was intoxicated and was the initial physical aggressor at the time of injury. The defendant relied on Labor Code sections 3600 (a) (4) and 3600 (a)(7).

The Workers’ Compensation Judge (WCJ) found the injury compensable since the claim was not properly denied within 90 days. The WCJ also found that neither defense was applicable.

Li the WCJ decision, the judge indicated that the carrier had witness statements within the 90 days that could have supported a possible denial.  In addition, a subpoena could have been issued for the police report so that the carrier would have had the information within the 90 day time limit. The WCJ then indicated the police report would not be admissible for purposes of determining compensability. The WCJ relied on Williams v WCAB (1999) 64 CCC 995.  hi the discussion of the intoxication defense The WCJ elucidated that the carrier has the burden of proof of not only the intoxication, but that the intoxication caused the injury. In this case the applicant had declined to have blood drawn. The WCJ indicated that the carrier had alternative means to obtain evidence of intoxication and did not do so. The WCJ reviewed Smith v. WCAB (1981) 46 CCC 1053.

The issue of the initial physical aggressor was addressed on the basis of credibility of the witnesses. The police officer was apparently disbelieved by the WCJ because of the leading questions by the defense attorney and the change in the nature of his testimony after a break in the proceedings. The WCJ indicated there was no evidence presented that the applicant was the first to initiate any harmful or potentially injurious touching. The Appeals’ Board relied on Garza v. WCAB (1970) 35 CCC 500 for relying on the WCJ’s assessment of the credibility of the witnesses.

An Applicant Can Be A Vexatious Litigant

There is a concept in civil litigation that you can not be litigating the same idea more than one time. The concept that you cannot be a vexatious litigant has never been applied to the Workers’ Compensation Appeals Board (WCAB), until now.

The applicant in this case was in proper. The applicant alleged a specific injury as well as a cumulative trauma The applicant settled by way of Compromise and Release (C &’R)1 The applicant then tried to set the C & R aside. The workers’ compensation judge determined after a hearing that the G & R could not be set aside under Labor Code section 5804, because more than five years had elapsed since the original injury.

The applicant filed a Petition for Reconsideration which was apparently denied so he filed a Petition for Writ of .  Review. This was denied and the applicant again tried to relitigate the matter before the WCAB. He filed for more writs after having been unsuccessful in the previous attempts to set aside the C & R after the fourth filing the WCAB filed a “Notice of Motion and Motion To Obtain A Profiling Order Pursuant to the Vexatious Litigant Provisions of , Code of Civil Procedure, section 391 et seq.”.  The Court of Appeal denied the motion because the writ had already been denied.

When the applicant filed his fifth writ, ‘ the court of appeal held a hearing and found die applicant a vexatious ‘ litigant.  The-applicant argued that res judicata did not apply to material that he never raised when he should have.  The court of appeal felt res judicata did apply and made the applicant a vexatious litigant.

The court delineated res judicata for workers’ compensation purposes. It stated: “ Res judicata cannot be avoided by neglecting to bring a relevant matteror important evidence to the attention of the tribunal at the appropriate time. If the matter was within the-scope of the’-action, related to the subject matter and relevant to the issues, so that it could have been raised, the judgement is conclusive on it despite the fact it was not in fact expressly pleaded or otherwise urged.’ The reason for this is manifest. A party cannot be negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matter which were raised or could have been raised, on matters litigated or litigable.”

The penalty for being a vexatious litigant is the imposition of sanctions.  The res judicata issue of this case is very important to remember in all cases.

Penalty For Not Advancing P.D. With V.R.M.A Payments

This appellate court case deals with a penalty for not advancing permanent disability (PDA) while vocational rehabilitation maintenance allowance (VRMA) was being paid by the employer.

The facts of the case are convoluted.  For the purpose of this newsletter the pertinent facts are that the employer never paid the applicant PDA’s and VRMA at the same time.  The applicant claimed that a PDA supplement should have been paid while VRMA was being paid. The applicant claims that by not paying the PDA supplement the employer is subject to a 10% penalty pursuant to labor code section 5814.

The case went to trial and apparently this issue was not part of the trial. The Judge ruled that PDA’s were not raised at the trial. Petitions for reconsideration were filed. The Judge recommended denial of the petition and the Workers’ Compensation Appeals Board (WCAB) denied the petition.

The appellate court indicated that this was a due process issue. The reasoning was not that the Judge needed to develop the record, but rather needed to read the record.

The defendant in this case relied on the case of Tangye v. Henry Beck & Co. (1978) 43 CCC 3, for the proposition that defendant does not have to pay PDA’s and VRMA at the same time. The defendant argued that even if that argument was not accurate they should not be liable for a penalty under labor code section 5814 for having relied on Tangye.

The court refers to the specific language in Tangye. Tangye indicates that temporary disability and permanent disability cannot be paid at the same time. The Rucker case is differentiated by the appellate court. In Rucker the court is not talking about temporary disability but rather a vocational rehabilitation maintenance allowance which is different.

Labor Code section 139.5, subdivision (d) was amended in 1989. This had the effect of abrogating Tangye in cases where PDA’s had been requested. (Where the applicant makes no request for PDA supplements was not decided here.) The defendant offered no evidence at the trial to justify it’s reliance on Tangye.

The court of appeal indicated that for a defendant to make a determination as to a reasonable delay defense for Labor Code section 5814 the defendant must rely on facts. The court indicated that defendant’s mere reliance on Tangye, was not evidence of facts. Therefore, a penalty was appropriate for the nonpayment of PDA’s with VRMA when it had been requested by the applicant.

How To Determine Attorney Fees In 100 % P. D. Case

It would seem that there is some concern over how attorneys’ fees are determined when there is a Findings and Award for 100% permanent disability. On June 26, 2000 an Order Granting Reconsideration an Decision After Reconsideration issued by a Workers’ Compensation Appeals Board (WCAB) panel answering that question.

The applicant filed a workers’ compensation claim for injury to his heart as a fire captain. The defendant apparently accepted liability and paid temporary disability. An agreed medical examiner was chosen and found the permanent disability to be a limitation to light work and without “high degrees of emotional stress.” The defendant also provided psychiatric treatment.

The applicant apparently then became represented by his present attorney who brought this petition for reconsideration in regards to attorney fees. The applicant was alleged to be a difficult client to represent. His illness prevented him from acting competently. The claims examiner offered to stipulate to a permanent disability award of 83 %. The applicant’s attorney recommended rejection of the offer.

The applicant’s attorney had to secure the appointment of a guardian ad litem.  The applicant’s attorney represented the applicant over 8 years and made over a dozen appearances before the WCAB.  The applicant’s attorney even tried to withdraw of counsel at one point, but the workers’ compensation judge (WCJ) insisted that the attorney continue to represent the applicant.

The applicant was eventually determined to be 100 % permanently disabled. The applicant’s attorney asked for a fee of $59,732.65, or 15 %. The WCJ awarded a fee of $27,500. The WCJ apparently did not rely on Goler v, W&JSlocme Co., but used a different formula.

The applicant’s attorney filed a petition for reconsideration and relied on Lawrence Drasin v. WCAB and Wheeler & Barton. The Board granted reconsideration.

The Board looked at WCAB 10775.  The Board considers many factors in determining attorney fees,, including the time Spent on the case by the attorney and the result obtained. A normal fee is 9 to 12 %. In more complex cases a higher fee may be warranted based on all benefits obtained (Does this include temporary disability and medical care?). The Board indicated that the WCJ must include the amount of temporary disability and out-of-pocket medical expenses. In this case they awarded 15% of the present value of applicant’s benefits.

Labor Code Section 3600(A) (10) May Apply Before Layoff

In an opinion that will not be published in the official reports the Court of Appeal discussed the reporting of an injury after the notice of layoff has been given to an employee, but before the actual layoff has occurred.

The applicant suffered an admitted injury and missed several weeks of work. The applicant came back to work and suffered a back injury but did not immediately report the new injury.

At the time of the alleged new injury there had been rumors that there was going to be a temporary layoff. The applicant questioned the supervisor whether the rumors of the layoff were true prior to reporting the injury.

The evidence was apparently contradictory as to whether the injury was actually reported before the layoff. The applicant testified that he told the supervisor about the injury before the formal notice of the layoff was given to the applicant.

The applicant had a private trucking company that was not affiliated with the employment where he was allegedly injured. He informed his supervisor that if he was not going to be laid off he would need to make arrangements to have someone else deliver a load for his trucking company. The supervisor testified at trial that he told the applicant that he better take the load himself This was before the applicant reported the injury.

The supervisor testified that this was a “major hint” to the applicant that he was going to be laid off even though it was not actual knowledge. The supervisor testified that after the “major hint” the applicant reported the injury.

The appellate court looked at Labor Code section 3600 (a) (10). All four sections of this subdivision refer to notice of the termination or layoff.  The Workers’ Compensation Appeals Board did not believe that the “major hint” provided actual or constructive knowledge to the applicant of the prospective layoff. The appellate court disagreed.

The appellate court reasoned that the “major hint” was enough to give the applicant actual knowledge of the layoff. The case was remanded to the Workers’ Compensation Appeals Board for reconsideration.

Thus, it would appear that when presenting a defense as to notice of termination or layoff under Labor Code section 3600 (a) (10) the record must be fully developed. It must be determined not only when the actual layoff or termination took place but also when there may have been rumors, innuendos or “major hints”.

Cosmetic Surgery Is Part Of Award For Future Medical

An appellate court has determined that in a case where the future treatment appears to be cosmetic in nature, the Workers’ Compensation Appeals Board (WCAB) must make an award of future medical care.

The applicant was working inside a tank he was repairing. Another employee was welding an ignited a fireball inside the tank, severely burning the applicant. The applicant suffered significant burns which required skin grafting. The applicant underwent multiple surgeries.

At the hearing the applicant testified that the burns covered most of his body. He testified the burn areas itch.  The areas were intensified with exposure to sunlight. The burns to his face still caused pain. The accident weakened his arms. He could no longer due repetitive lifting with his arms due to weakness.

The applicant had to wear long sleeves to protect his arms from exposure to the sunlight. He had to avoid moisture near the burn areas. Dust, heat, cold, and humid temperatures all exacerbated the condition. The burns on his back caused back pain if he sits for more man one hour. The bums on his knees made him unable to crawl, kneel or squat.

The applicant testified that the physicians have not indicated further surgery because there is nothing more they can do. The applicant testified that if he were offered further surgery that would help him, he would have the surgery.

The applicant submitted four reports from different physicians which in essence stated he should have reconstructive surgery.

The Workers’ Compensation Judge (WCJ) found the applicant 65.5 percent disabled. The WCJ did not award future medical treatment. The WCJ’s reasoning was that the applicant had not had any surgery in the five years proceeding the hearing. It was the opinion of the WCJ that cosmetic surgery would not relieve the applicant from the effects of the injury and should therefore not be awarded.  The applicant filed a petition for reconsideration. The WCAB upheld the WCJ.

The appellate court followed another decision stating “the purpose of any surgical attempt in connection with an injury received by an employee is to restore him to as nearly a natural and normal condition as may be possible…The evident purpose of some of the surgical operations on the employee is to give him a more presentable personal appearance.” The court reasoned that the cosmetic surgery may help the applicant to secure -future employment in the open labor market. The surgery may also effect the applicants morale and self-respect which would help in the.  rehabilitation process.

This court found the need for cosmetic surgery as part of the need for future medical care.

Discharge By Treating Doctor Triggers 4061 & 4062

This appellate court held that where four things occur the provisions of section 9785, subdivision (b), and Labor Code section 4061 and 4062 apply to change primary treating doctors.  Where the original primary treating physician has found the employee permanent and stationary, released the employee to return to work, and prescribed no further doctor-involved treatment or visits, and discharges the employee this will trigger the use of the Qualified Medical Examiner.

The applicant sustained an injury to her right knee. The primary treating physician declared her permanent and stationary. Under the treatment section of his report the doctor indicated the need for home exercise.  Under future medical care the doctor indicated there would be need including possible surgery. There was no ongoing treatment.

The applicant was unrepresented and objected to the treating doctor report.  The employer provided the applicant with the three-physician panel per Labor Code section 4061 (d). The applicant did not choose a panel doctor but obtained an attorney. The attorney indicated that the applicant was obtaining a new treating physician.

At trial the defendant objected to the new treating physician. The Workers’ Compensation Judge (WCJ) allowed the presumption to the new treating doctor because the first treating doctor had allowed for future medical care.  The WCJ had concluded that the allowance of future medical meant the applicant had not been discharged from care. The Appeals Board agreed with the WCJ.

The court cited section 9785 (b). “If it is determined that there is no further need for continuing treatment then the physician who discharged the employee shall remain the primary treating physician. If it is determined that there is further need for continuing treatment, a new primary treating physician may be selected.” The court defined these terms. The terms continuing treatment and future treatment are not interchangeable. If there is no ongoing doctor-involved treatment a new treating physician will be disallowed. The court looked at Roacho v WCAB a writ denied case for authority.

The important consideration the court gave was that the applicant was discharged with no ongoing treatment. A future case may answer whether the one page check off the doctor uses to discharge the applicant will be sufficient to trigger 4061 & 4062.

Illegal Worker Not Entitled To Rehabilitation

The Court uses the phrase illegal worker to describe a person working in California that does not lawfully reside here. It is a federal crime to enter the US without the permission of the United States Government.

The applicant was employed at a restaurant when he injured his back.  The day after the injury the physician released the applicant to modified duty. The applicant returned to modified duty. The employer discovered that the applicant was not legally in the United States. The applicant had provided the employer with an invalid social security number.

The applicant applied for workers’ compensation benefits. Apparently there was a hearing.  The workers compensation judge awarded the applicant temporary total disability up until the permanent and stationary date. The judge also awarded the applicant $16,000 worth of vocational rehabilitation benefits. Normally, vocational rehabilitation would not be tried with the main issues. This opinion does not give an analysis of the sequence of events in this case. We do not know what happened at the rehabilitation bureau prior to the trial.

The case was appealed. The opinion does not explain what happened on petition for reconsideration. The employer contended that the worker should not be entitled to temporary or permanent disability because the worker was not legally working in the United States. The appellate court indicated that a worker’s immigration status does not affect the entitlement to temporary disability payments. The court cited Labor Code section 3351 which states that “every person in the service of an employer…whether lawfully or unlawfully employed, and includes: Aliens and minors”.

The court then dealt with vocational rehabilitation. In this case if the employer offers modified or alternative work and the employee either accepts or rejects the offer, the employee is not entitled to vocational rehabilitation services. Here the employer offered the modified work and then discovered the applicant was not legally permitted to work in the United States. Continued employment of the applicant would have subjected the employer to civil penalties, criminal fines and imprisonment.

The employer argued that providing the applicant vocational rehabilitation would deny the employer equal protection of the laws. This court agreed. The court indicated that an illegal worker would not have equal protection but would end up having more protection than a legal worker. In this case a legal worker would not be provided job training because the employer had offered the employee modified work. Therefore, if an illegal worker were to be entitled to vocational rehabilitation training the illegal worker would be entitled to more extensive services than a legal worker.

Self-Inflicted Injury Needs To Be Proven Ay Trial

A defense that is seldom utilized in the workers’ compensation cases is that of the applicant self-inflicting an injury.  The Labor Code has specifically codified certain defenses that will defeat an applicant’s claim for an industrial injury. Labor Code section 3600 (a) (5) specifically disallows a claim that occurs on the job if the applicant self-inflicts the injury in question.

The applicant injured his left hand, fingers, wrist, and arm while operating a saw at work. The applicant filed an Application For Adjudication of Claim.  The case was apparently denied. The employer apparently believed the applicant was trying to get workers’ compensation benefits by injuring himself. The case does not tell us why the employer had these beliefs.

The defendant at trial brought out testimony that the Applicant was upset over his divorce. They further indicated that the he was losing custody of his son. At the time of injury the Applicant was having his wages garnished for child support. There was additional testimony that one year prior to the injury the Applicant slit his wrist in an apparent suicide attempt. The Applicant was then held in a psychiatric ward for three days.

The trial lasted four days. The defendant asserted at the trial that the Applicant did not need to use the saw he was using at the time of his injury.  Therefore, the defendant alleged the Applicant was doing the work in an unauthorized manner. The Workers’ Compensation Judge (WCJ) stated that this was not a workers compensation defense. The defendant did substantially impeach the Applicant at the trial. The defendant showed the Applicant’s poor recall of events prior to the injury. The defendant also established that the Applicant had a character of self- destructiveness.

The WCJ found that you can not prove self-inflicted injury by impeaching the applicant. The evidence that was presented included evidence that the Applicant was depressed, self-destructive and looking at insurance papers before the injury. The WCJ indicated this was all circumstantial evidence. There was no direct evidence that the Applicant intended to injure himself. There was no witness testimony that the Applicant intended to injure himself.  There were no physicians’ reports that indicated that the Applicant intended to injure himself. The WCJ concluded that he could not draw an inference that the applicant intended on injuring himself. The WCJ indicated that inferences are to be drawn in favor of the Applicant.

The WCJ found the injury compensable and the Workers’ Compensation Appeals Board concurred. The case should also be reviewed for details on ordering a transcript.

An Application Must Be Filed To Toll Limitations Statute

This newsletter usually does not comment upon Writ denied cases.  However, the case covered in this edition states some well founded concepts that are often overlooked.  Most practioneers believe the statute of limitations does not exist in the workers’ compensation setting. They could not be farther from the truth.

The applicant was employed with the defendant until 1991. On 10/3/96, the applicant filed a claim form for workers’ compensation benefits. The applicant was claiming a psychiatric injury during the course of his employment from 1969 until 1991.  The claim form was denied timely.  The applicant then filed an application for adjudication of claim on 11/25/97.

The matter was set for trial because The defendant contended the Application for Adjudication was barred by the statute of limitations (SOL). The workers’ compensation judge (WCJ) found that the applicant was credible and that the applicant was first aware that the claim was industrial on 6/4/96.  However, the WCJ did not find the case barred by the SOL. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) returned the case to the trial level for the WCJ to consider Labor Code sections 5401, 5500, and 5412. The WCJ issued a new decision finding the claim barred by the statute of limitations.

The applicant appealed, stating that the law in effect in 1991, not 1996, should govern the outcome. The WCJ in the report on reconsideration found that the date of injury under Labor Code section 5412 was 6/4/96. This is when the applicant first became aware of the injury. The WCJ stated that it is the filing of the Application which gives the WCAB jurisdiction, not the filing of the claim form.

The WCAB agreed with the WCJ. The WCAB stated that the commencement of the running of the SOL under Labor Code sections 5404 and 5406 depends on the date of injury.  For injuries occurring from 1990 through 1993, the claim form commences WCAB jurisdiction.  Before 1/1/95 an application is not necessary to commence proceedings.  After 1/1/95 the application is necessary.

“For injuries after 1993, it is again the filing of the application with the WCAB, not the filing of the claim form with the employer, that establishes WCAB jurisdiction and begins the proceedings to collect benefits. The filing of the claim form with the employer is still required, and acts to toll the running of the SOL, until the employer has denied the claim or until the claim has become presumptively compensable through the employer’s failure to deny. At that time, the limitations period again runs until compensation is paid or an Application is filed with the WCAB. (Labor Code section 5401©, 5404).”

Newsletter Sign up

Workers Compensation Feed

Recent Newsletters