by "Jake" Jacobsmeyer
Once a month or so I receive a message from
Lexis advising me that
they have posted new decisions to the California Compensation Cases. Many
of the reported cases are ones that have already been the subject of my
commentary during the preceding months. However included within the message
are both decisions of the Courts of Appeal which are unpublished (upon which
I almost never comment as we are specifically prohibited from citing these
decisions as legal authority) and decisions which are reportable and citable
as "writ denied" cases. Writ denied cases are reports of cases where a
Petition for Writ of Review has been denied by the Court of Appeal.
Particularly in these days where we are looking for any source of
medical authority for ongoing changes in the law, writ denied cases can
provide some guidance on the law. Keeping in mind that these cases are
interpretations decisions by the editors at Mathew Bender and Company (now
owned by Lexis), I will periodically report on some of the more significant
and hopefully useful cases where the Petition for Hearing has been denied by
the courts and the principles identified in the case appear to be of
relevance to the general workers' compensation community. Writ denied cases
are citable as legal authority however they are persuasive only if there is
no higher contrary authority and are not binding on trial courts. It is
also important to note that there are frequently writ denied cases with
conflicting decisions on what appear to be the same issue. It is therefore
important to review the entire body of case law before placing too much
reliance on such a low level of legal authority.
The following is a summary of a series of writ denied cases
currently published in the California compensation cases:
1. HOLLAND v. WCAB, 70 CCC 1515:
Issue: Penalty and Sanctions
In this case the applicant attorney was sanctioned by the WCJ with
her decision upheld on reconsideration, for filing what was deemed a
frivolous and bad faith Petition for Penalties. The applicant attorney
filed a Petition for Penalties asserting failure to pay a Compromise and
Release appropriately but did not provide any additional details as to what
the issue might be. When the parties appeared at the Mandatory Settlement
Conference it turned out that what was claimed was $2.50 of interest. The
defendant immediately paid the interest due and self-imposed a penalty of
$.50. The workers' compensation judge denied the applicant's request for
penalties holding that the delay was inadvertent, not unreasonable and that
weighing of equities mandated the penalty was not appropriate. The WCAB
also denied the request for penalty drawing on the new provisions of Labor
Code section 5814(b), (c), (d) and (g) as amended in SB 899.
The trial judge determined that the applicant attorney's conduct
in filing a Petition for Penalties and Declaration of Readiness to Proceed
was frivolous and in bad faith where the only issue was a $2.50 interest
claim and there was no effort to address the issue informally. The trial
judge ordered the applicant attorney (not applicant) to pay attorney's fees
in the amount of $1,520.00 for the efforts of attorney for defendant in
defending the penalty issue.
Of particular interest also in this case was the fact that the
Award was issued in 2001 and the claim for penalty was made more than two
years later and after SB 899 had passed. Defendant not only paid the $2.50
once they were apprised of the issue but also imposed the self-imposed
penalty on same. In spite of that applicant still asserted the penalty on
the entire Compromise and Release of $15,000.00.
The WCAB was clearly not pleased with what it perceived as a waste
of its resources on this issue.
2. AGUIRRE v. WCAB and CNA INSURANCE COMPANY, 70 CCC 1487
Issue: Psychiatric injury and 6 month rule
In this case the WCAB relying upon Wal-Mart Stores v. WCAB (2003)
112 Cal. App. 4th 1435, 68 CCC 1575 determined that applicant's psychiatric
injury was barred pursuant to Labor Code section 3208.3(d) where the employee was
employed with the specific employer for a period of less than six months
before an admitted orthopedic injury but obtained employment out of a union
hall with a group of employers who had a contract with the specific union.
Applicant had advanced the rather creative argument that since the
injured worker was a Union employee for almost six years prior to the injury
and had moved from job to job based upon assignments by the Union that the
six years of employment should be strung together on the basis that the
Union contract tied the employments together into, in effect, a single
employment. The trial judge had accepted the argument holding that the
employee was "constructively employed" by all of the employers who were
contractually bound by the Union agreement.
The WCAB reversed holding Labor Code 3208.3 required a specific employer
had to employ the injured worker for a period of six months prior to the
development of the psychiatric injury in order for injury to be found on a
psychiatric basis.
3. MELLO v. WCAB and SCIF, 70 CCC 1525
Issue: Apportionment to previously asymptomatic condition
This is an apportionment case in the post SB 899/Escobedo v.
Marshall's world. The injured worker sustained an injury on 5/10/2002. She
had a preexisting scoliosis condition for which she had undergone surgery
subsequent to the injury.
The parties utilized an Agreed Medical Examiner who concluded that
applicant was limited to light work and apportioned 50 percent of her
disability to the preexisting scoliosis and 50 percent to the industrial
injury. In describing apportionment the doctor specifically noted that the
injured worker had a chronically weakened lumbar spine as a result of the
scoliosis and that she was significantly more vulnerable to any injury than
she would have been in the absence of such condition. The doctor's opinion
on apportionment was based upon his perception that the preexisting
condition clearly made her more vulnerable and the industrial injury clearly
aggravated the condition to the point where surgery was required. He opined
that the allocation of 50/50 was "reasonable" under the circumstances.
Of significance is also the fact that the doctor conceded absent
the industrial injury, he would not have been able to state that she would
have become disabled. Nonetheless the WCAB determined that his opinion met
the criteria for apportionment under Labor Code section 4663 and Escobedo v.
Marshall's (2005) 70 CCC 604.
This decision is significant because the arguments made by
applicant were specifically based upon the footnote 7 in Escobedo where the
Board indicated that they were not talking about "lighting up" cases. In
this case the industrial injury clearly "lit up" the scoliosis which was
previously asymptomatic to result in significant additional disability.
Further, the fact that the Agreed Medical Examiner indicated he could not
state with reasonable medical probability that the scoliosis would have
progressed to become disabling absent the industrial injury, addresses one
of the other arguments often raised by applicant attorneys and argued by
physicians disputing apportionment. I have frequently seen commentary by
applicant attorneys that in order to support a finding of apportionment, the
physician must be able to state that absent the work injury the pre-existing
condition must either have been disabling or would have become disabling
absent the industrial injury. This is a case of a previously asymptomatic
condition which made the injured worker clearly much more vulnerable to
trauma, contributing in a very significant manner to her disability after an
industrial injury, but the WCAB did not require a showing that there would
have been disability in the absence of the injury; just that the
pre-existing condition contributed to the disability that ultimately was
found..
4. OLIVARES v. WCAB, CONSTRUCTION PROTECTIVE SERVICES INC. ADJUSTED BY
SOUTHLAND CLAIMS SERVICES, 70 CCC 1358
Issue: Reopening Record for Deficits in Representation by Prior Applicants
Attorney
In this case the WCAB granted a defendants' petition for removal
from an order reopening discovery for further development of the medical
record after discovery had been closed at an MSC, reversed the WCJs order
reopening discovery and sent the case back to the trial level.
The applicant had petitioned to reopen discovery upon changing
attorneys and arguing that the initial attorney had not raised all the
issues that should have been raised or develop the medical record in a
complete fashion. The WCAB rescinded the trial judge's reopening of
discovery taking the matter off calendar holding that:
"&applicant claims in his deposition that he had back pain from the date of
his injury, it is never mentioned in the reports of the treating physician.
Although the applicant's medical reports are not in the Appeals Board's
file, the WCJ states in his report that an MRI shows a nine millimeter disc
protrusion in the back. Yet none of applicant's attorneys succeeded in
getting a Qualified Medical Evaluation (QME) and one of applicant's
attorneys apparently 'forgot' to list injury to the back as an issue at the
MSC."
"In McDuffie v. L.A. County MTA (citations omitted) the Appeals Board
stated: 'Before directing augmentation of the medical record&, the WCJ or
the Board must establish as a threshold matter that the specific medical
opinions are deficient&"
The significance of this decision is the manner in which the Board
dictates that the record is to be evaluated for purposes of reopening
discovery when there is an order of closure. The methodology dictated in
McDuffie and relied upon in this case, is for the judge to complete the
existing record and determine whether he has an adequate basis upon which to
make a determination. If the record is deficient at that point the judge
may make a determination that the record needs to be supplemented or
completed in some fashion. However the judge is not simply to take an
assertion that additional information is needed and proceed at that point
but must make a finding based on the evidence as presented that the record
needs to be completed. The question of whether the Injured Worker will be
entitled to re-open the record will depend on whether the WCJ believes that
he/she is unable to render a decision on the existing record.
5. PERMANENTE MEDICAL GROUP v. WCAB (ROSALES), 70 CCC 1370
Issue: Calculation of PERMANENT DISABILITY Benefits after Petition
to Reopen Granted
This case addresses an issue which I have seen coming up in some
frequency and demonstrates a fundamental lack of understanding of how
workers' compensation permanent disability benefits are calculated. In this
case the applicant had already received an Award of permanent disability
benefits from the WCAB. Upon filing a Petition for New and Further
Disability, the WCJ determined that the injured worker had demonstrated
increased disability and awarded additional permanent disability.
Defendants argued that exiting permanent disability rating should be
subtracted from the increased rating. However the WCAB properly determined
that the dollar value would be credited against the new Award not the
percentage of disability. The WCAB determined that Nabors v Piedmont Mill
and Lumber did not apply to this situation.
When a Petition for New and Further Disability is granted (or for
that matter Petition to Reduce) it is the same injury that is being
litigated not a new injury. There is no "preexisting" disability to be
subtracted or considered on the basis of apportionment. This is not an
apportionment issue but simply a re-determination of the same injury with a
different (increased or decreased) level of disability. In making such an
Award defendant is entitled to credit for the payments that have already
been made for the prior Award, just as if it was taking credit for permanent
disability advances. There is no legal basis for an argument that the
defendant is entitled to subtract the prior permanent disability rating from
the new permanent disability rating as can be argued where we have separate
injuries.
There is nothing about Labor Code section 4663 or 4664 which has any
impact on calculations of benefits for the same injury whether on the basis
of a new and further disability or a reduction in a prior permanent
disability Award. Those sections only impact apportionment to different
injuries or different causes, not the same injury.
End of summary of writ denied cases.
By attorney Richard "Jake" Jacobsmeyer, managing partner of the Concorde office of Adelson, Testan, Brundo & Popolardo. Jake can be reached at
richardjacobsmeyer@atblaw.net.
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