Workers’ Compensation Update

In this week’s blog, we continue to look at up the minute W.C.A.B. cases addressing issues of importance to the workers’ compensation community:

In Schulke v. Xerox [ADJ82114584] the W.C.A.B. described the difference between a physical injury caused by stress and a psych injury.  This distinction is important since psych injuries have restrictions which do not apply to physical injuries.

In order for a psych injury to be compensable: (1) the employee must be at the job for over six [6] months; (2) the injury cannot be caused by good faith personel actions and (3) if the psych injury is a compensable consequence of a physical injury – no permanent disability is awarded for the psych problem after 2013.

In Schulke, the worker suffered a heart attack caused by stress.  The insurance company argued that this was a psych injury caused by good faith personnel actions – so – it would not be compensable.

The WCAB noted that “stress is not a diagnosis, disease or syndrome…  Whether or not stress contributes to a disease or syndrome depends on the vulnerability of the individual, the intensity, duration, and meaning of the stress; and the nature and availability of modifying resources.  Stress may cause a physical injury, stress may cause a psychological injury; however stress itself is not an injury.”

The court held that when stress causes a physical injury, the restrictions against psych claims do not apply.  There is a limited exception to this rule where the physical injury is caused solely by a psychiatric condition.  The complexity of these types of issues show why you need a certified expert in workers’ compensation to represent you.

The court concluded by noting that in order for an insurance company to block a physical injury caused by stress [HBP, heart attacks, strokes etc.] the insurance company must prove the following: (1) Applicant suffered a psychiatric injury; (2) the psychiatric injury is not compensable; (3)the psychiatric injury was the sole cause of the physical condition.

The leading case for this insurance defense is McCoy v. County of San Bernardino 77 CCC 219.

In a case coming right out of current events in San Diego, the W.C.A.B. discussed what the worker needs to show in order to prove that his/her hepatitis was caused by work.  In Dulac v. Gambro Healthcare ADJ4394929 – the insurance company denied the worker’s claim stating that the worker had not met her burden of proof.

The court explained that the worker must first prove the injury occurred in the “course of employment” which refers to “the time, place, and circumstances under which the injury occurred.”

Next the worker must prove that the injury arises out of the employment outright – that is, occur by reason of a condition or incident of employment.  The employment and the injury must be linked in some causal fashion; but such connection need not be the sole cause, it is sufficient if it is a contributory cause.

Applicant has the burden of proving reasonable probability of industrial causation, but is not required to prove causation to a scientific certainty.

When the disputed injury involves a viral disease, the employee must demonstrate a relationship of cause and effect between the employment and the disease, and that the employment subjected the employee to a special risk of exposure in excess of the general population.

Reasonable probability of industrial causation does not require the applicant to prove in detail the approximate number of hours of exposure, or as to the amount of exposure needed to increase materially the danger of injury.  Nor does the employee have to prove scientifically the source of contagion or the cause of the disease, but only that he establish by a preponderance of the evidence the fact that his disability arose out of and happened in the course of employment.

In Dulac, the worker’s job involved handling blood products which was enough to show that she was at a greater risk than the general public for hepatitis exposure and enough to meet her burden of proof.

In Pecoraro v. PT Gaming ADJ9718068 the court discussed whether defendants can send the State medical examiner [QME] a print-out of applicant’s Facebook page.  The court held that pursuant to 8 California Code of Regulations 35 [8 CCR 35], the party who wants to send information to the QME must first send it to the opposing party.  If the other party objects, the first party cannot send the material to the QME without a court order.  The Judge will determine if the relevance of the 

Facebook page outweighs the worker’s privacy rights.  Obviously if the worker says he cannot walk and the posts a Facebook entry showing him running a marathon – that will not go over well.

Hidalgo v. Hilbert Property Management [ADJ9772365] is an important case describing the issues that come up as the attorneys try to get a doctor who will be favorable to their client’s situation.

As a general proposition, chiropractors are more liberal & worker friendly than orthopedic surgeons.  Many times the attorney will designate a chiropractor in the employer’s medical provider network [MPN] to serve as the primary treating physician [PTP].  The chiropractor serves a “gatekeeper” sending the worker to whatever specialty he/she needs to get better and return to work.

If the employer objects to the findings of the chiropractor PTP, the parties can request a PANEL of three doctors [QME’s] from the State.  Normally, the State will send a list of three doctors in the same specialty as the PTP. 

In Hidalgo, the worker got a PANEL of chiropractors and the insurance attorney objected saying that an orthopedic surgeon would be better able to examine the worker since there were a myriad of body parts alleged other than the back.

The Medical Director who is in charge of deciding what specialty should be used agreed with the insurance company.  When the worker objected to the Medical Director’s determination the matter was put at issue before a workers’ compensation Judge who also agreed with the insurance company.

The worker appealed to the WCAB in San Francisco and the Board held that in order for the Medical director to decide that an orthopedic surgeon is the better specialty, he/she she must make a finding that the chiropractor lacked the needed knowledge and was inappropriate for the disputed medical issue.  Since the Medical Director had not done that, the worker was able to be examined by the State chiropractor & the attorney’s strategy worked!

Moral of the story, there is a lot of politics in the workers’ compensation arena these days.  An experience workers’ compensation attorney is needed to know the right strategies and case law & provide the best chance for success.

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