Author Archives: San Diego Work Comp Attorney

CATASTROPHIC INJURIES: THE WILSON CASE

On 5/10/19, the WCAB wrote the Wilson v. State of California Fire decision describing what the worker needs to prove in order to get a psych disability add on to an industrial orthopedic injury under L.C. Section 4060.1(c).

Prior to the enactment of 4060.1(c) in 2013 workers were able to obtain increased benefits if their orthopedic injury caused psych problems such as anxiety and/or depression.  After 2013, the only way a worker could get the psych add on to his permanent disability was to show that his orthopedic injury was “catastrophic”.  Until the Wilson decisions, there was no set definition as to what was needed in order for an injury to qualify as catastrophic.

Labor Code Section 4060.1(c) notes that catastrophic injuries include loss of limb, paralysis, severe burns or severe head injury.  The Wilson decision now tells us how to determine if an injury will be accepted as catastrophic by the WCAB.

The WCAB held that the determination will be factual.  The Judge should look at: (1) the intensity and seriousness of medical treatment rendered; (2) The ultimate outcome once the worker’s condition stabilizes; (3) The impact the injury has on the employee’s activities of daily living [ADL’s]; (4) how close to the examples provided above the injury is; and, (5) whether the injury is incurable or progressive.

If you have any questions about catastrophic injuries, feel free to e-mail me at JACK@SDWORKCOMPATTORNEY.COM or call me at 619.338.9012.

IMR APPEALS

The medical care delivery system in California workers’ compensation has becomevery challenging for the injured worker.  First, the worker has to pick a doctor from the insurance company Medical Provider Network [MPN]; after that, any treatment requested by that doctor is normally sent to Utilization Review [UR] which is another insurance doctor looking over the shoulder of the MPN doctor.  If UR denies the care, the worker must appeal to Independent Medical Review [IMR].  IMR presently has about a 90% denial rate for requested medical care.

Given the high denial rate for IMR, it is important for the practitioner to know when and how to appeal a bad IMR decision.  Labor Code Section 4610.6(h) authorizes the Appeals Board to review an IMR determination.  The IMR determination is presumed correct and can only be set aside by clear and convincing evidence of one of the following: (1) The Administrative Director [AD] acted in excess of his powers; (2) The IMR decision was procured by fraud; (3) The IMR doctor had a conflict of interest; (4) The IMR doctor was biased against the worker due to the workers’ race, age sex or religion etc; (5) The determination was the result of a plain factual mistake – not subject to expert review.

Since the worker does not know the identity of the IMR doctor, the only provable IMR offenses are (1) where the AD acts in excess of his powers and (5) where there is a clear factual error.

In Bowen v. County of San Bernardino [ADJ156419] the W.C.A.B. overturned an IMR denial of care saying that the IMR doctor had ignored the facts of the case.  The W,C,A,B, stated: “The IMR physician is obligated to look at all the submitted reports, and is obligated to consider the entire record.  The IMR reviewer may not pick and choose portions of the required accompanying documents.”  Specifically there was a prior IMR in the case which had authorized the use of NORCO noting functional improvement.  The primary treating physician [PTP] also noted evidence of functional improvement which the 2nd IMR doctor disregarded.

The moral of the story is that when we get an IMR decision which denies medical care, we must look to make sure it is based on the facts of the claim and not some made up fantasy the IMR doctor concocted to justify the denial.   If you have any questions about IMR feel free to call me at 619.338.90012 or e-mail at Jack@SDworkcompattorney.com.

WORKERS’ COMPENSATION PSYCH CLAIM – SUDDEN AND EXTRAORDINARY EVENT

Pursuant to Labor Code Section 3208.3(d) a worker may not bring a psych claim unless he/she has been employed for more than six months.  One exception to this rule is when the workers’ compensation psych injury is caused by a sudden and extraordinary event.

The W.C.A.B. has published several decisions describing what constitutes a sudden and extraordinary event which would justify the filing of a workers’ compensation psych claim.  In the PANEL decision of Paquini v. Spring Hill Jersey Cheese, Inc. [ADJ10248888], the W.C.A.B. held that Mr. Paquini’s car accident does not rise to the level of a sudden and extraordinary event since car accidents are a normal risk for truck drivers such  Mr. Paquini and therefore, were not extraordinary.

When deciding whether an event is sudden and extraordinary, the W.C.A.B. will look at the individual facts of the case when making the determination. In California Ins. v. WCAB (Tejera), the court held that a particularly violent truck accident did constitute a sudden and extraordinary event because of the unusually violent nature of the crash.

If you have any questions about whether a particular psych injury meets the L.C. Section 3208.3(d) criteria please feel free to call me at 619.338.9012 or e-mail me at jack@sdworkcompattorney.com for a free consultation.

THIRD PARTY CREDIT IN WORKERS’ COMPENSATION

Workers’ compensation is the exclusive remedy for any worker injured on the job.  While the worker cannot sue the employer in civil court for general damages such as pain and suffering – the worker can sue a third party who may have caused his/her injury.

For example, if I send my paralegal to the bank, any accident that happens while you are on your way to the bank would be covered under workers’ compensation; yet, if the accident is caused by a negligent third party – then – the worker has the right to sue that person in civil court.

If the accident was pretty bad and my paralegal settles his/her third party lawsuit for $300,000.00, my workers’ compensation insurance can assert a third party credit against the amount my employee got from the third party civil suit.  If the third party attorney takes a fee of 33 1/3%, my employee would get the remaining $200,000.00 from the third party lawsuit.  My workers’ compensation insurance could then petition the W.C.A.B. for a credit – meaning that they would not have to pay any further benefits until my employee shows that he spent the full $200,000.00 he got from the civil case.  The third party credit is normally allowed so the employee does not get paid twice for his loss.

This situation changes if the employer [in this case me] was negligent as well in causing the accident.  If I sent out my paralegal in a car with bad brakes and the bad brakes were 50% of the cause of the accident, the third party credit is reduced by 50% – so – instead of needing to spend $200,000.00 before getting any more workers’ compensation benefits, my employee would only have to spend $100,000.00 of his third party money prior to getting back on workers’ comp.

If there is no agreement, the W.C.AB. will determine (1) The full value of the damages suffered; (2) the percentage of fault of the employer; and (3) the amount of the credit remaining against the pending work comp. benefits.

There are two scenarios here: (1) a jury in the civil case determines the damages and percentages of fault – making the job of the W.C.A.B. a lot easier and (2) there is a settlement prior to the civil trial.  It may be that the employee settled his third party claim at less than full value.  If that is the case, the employee will have to show the W.C.A.B. what the full value of the claim really is prior to determining employer fault and eventual credit.

Let’s say that in our example the employee settles for the $300,000.00 but can show at the W.C.A.B. that the actual damages suffered were $600,000.00.  If the employer is still 50% at fault, then the employer could not get a credit until he can show that he paid the $330,000.00 in damages his negligent caused.  The policy against the employee getting paid twice is defeated by a stronger policy of not allowing the employer to profit from his wrong.

If you have any questions about Third Party Credits please feel free to call me at 619.338.9012 or e-mail me at JACK@SDWORKCOMPATTORNEY.COM.

San Diego Work-Related Stress Claim Attorney

San Diego Work-Related Stress Claim Attorney

Stress, Anxiety, Depression

With the help of an experienced attorney, it is possible to obtain workers’ compensation for psychological conditions like stress, anxiety and depression. The condition must be severe. It may be the result of an accident or the threat of harm at work. If you believe you have a legitimate work-related stress claim, contact the Law Office of Jack. A. Don located in San Diego today.

Psychological Injuries are Challenging Cases

Attorney John A. Don is a board-certified specialist with more than 30 years of experience as a lawyer.  Known as Jack to his friends, he works relentlessly on behalf of his clients to get them a fair settlement for their work injuries. When you choose Jack as your San Diego work-related stress claim lawyer, you get personal service on the preparation of your case. Your case will not get passed on to a paralegal or legal assistant!  Jack works directly with doctors and other experts to  ensure that your case is strong and positioned for success.

 Turned Down by Other Attorneys?

Unlike other San Diego workers’ compensation attorneys who will dodge these stress-related work injury claims, the Law Office of John A. Don boldly takes on these challenging cases. You may have a legitimate stress claim. Consult with workers’ compensation specialist Attorney John A. Don today.

USING BENSON TO AVOID APPORTIONMENT

In a recent PANEL decision Alea v. WCAB [Herrera] the WCAB discussed a situation where it was not appropriate to use the Benson doctrine to apportion disability between two industrial injuries.  The WCAB gave Mr. Herrera a combined AWARD which increased his permanent disability by $9,280.00.

Mr Herrera had two separate injuries to his back, internal and psych.  One injury rated at 39% [$56,260.00] and the second at 68% [$120,422.50].  The Judge held that since the psych and internal injuries could not be apportioned – the two injuries would be combined for an AWARD of 83% [$185,962.50].  The psych and internal doctors had attempted to apportion their “body parts” pursuant to the orthopedic apportionment of 20% non-industrial.  The WCAB held that the psych and internal injury apportionment must be done independently of the orthopedic apportionment; as such, the apportionment determinations tied to the orthopedic determination did not constitute substantial evidence.

In any case where there are multiple body parts, the applicant attorney must make sure that each body part is apportioned properly.  If any of the doctors find that the two injuries are inextricably intertwined – then – the whole claim is combined for a larger disability percentage and settlement amount.

Using the Herrera decision to void apportionment and the principles discussed in my last blog to add the disability instead of using the CVC can advance your client’s case.

REBUTTING THE CVC – KITE DECISION

In a recent PANEL decision Devereux v. SCIF ADJ10307426, the WCAB panel of commissioners decided that a worker may use the rationale in the Kite decision to rebut the Combined Values Chart [CVC] by adding all the disabilities as opposed to diminishing them pursuant to the CVC.

The CVC is a chart in the permanent disability rating schedule [PDRS] which combines a workers disability using the formula a + b (1-a) where a is the percentage of the workers’ 1st disability and b is the percentage of the workers’ second disability.  For example, if a worker as ha 15% disability in his elbow and a 10% disability in his shoulder; the total disability would be 15 + 10  = 25 (1 – .15) = 25(.85) = 21.  The idea behind the CVC is that there is an overlap between the elbow and the shoulder disability i.e., the injured arm is wear and hurt because of both disabilities – so – in order to avoid an overlap [counting the same thing twice] the CVC lowers the overall disability.

The Kite decision quoted from the AMA Guides [book used to rate disabilities] page ten [10] where the Guides note that sometimes it would be more accurate to add the impairment percentages versus using the CVC.

In the Devereux decision, the WCAB summarized the various cases which allowed adding separate disabilities versus using the CVC: Kite, La Count, Diaz and Sanchez.  In all those cases the doctor evaluating the worker’s disabilioty determined that there was no overlap and; therefore, the separate disabilities should be added.

A worker and/or his attorney must look at each MMI report and determine if there is overlap justifying the use of the CVC.  If the worker is suffering from a knee injury and also a neck injury, there is probably not much by way of overlapping disabilities – the neck mainly deals with the upper extremities while the knee is obviously used for a separate set of functions.

In the example above the 25% disability obtained by addition equals $29,217.50 whereas the 21% disability using the CVC equates to $23,345.00.  Every letter to an evaluating doctor should ask the doctor whether there is overlap between the impairments and whether a more accurate rating can be obtained by adding the impairments versus using the CVC!

DYNAMEX v. BORELLO

In a 10/23/2018 PANEL decision Perkins v. Don L. Knox, the WCAB discussed the new DYNAMEX employment test recently described in the California Appellate Courts and how the DYNAMEX test may be used in the work comp. setting.

Mr. Perkins worked as a laborer for Don L. Knox [DLK] as a demolition man at a Long Beach work cite. DLK was in the business of remodeling homes and supplied Mr. Perkins with some of the tools used at work. The workers’ comp. Judge [WCJ] had to decide if Mr. Perkins was an employee of DLK or an independent contractor who would not be entitled to workers’ compensation benefits. The WCJ stated that using the DYNAMEX test, Mr. Perkins would be an employee of DLK; using the Borello test the decision became more complicated. Eventually the WCJ found that Mr. Perkins was an employee of DLK.
DLK appealed and the WCAB discussed which test should be used to make the employee/ independent contractor determination.

The Borello test looks at the following factors:

(a) Is the person performing services engaged in a particular occupation such as a plumber or electrician?
(b) Is the type of work he/she is doing done by an independent contractor?
(c) Does the work required advanced skills?
(d) Does the worker bring his/her own tools?
(e) How long does the job last – is the worker there indefinitely?
(f) Is the worker paid by the hour or by the job?
(g) Is the work being done part of the employer’s regular business?
(h) What was the intent of the parties?

In DYNAMEX the Court was determining whether the worker should be covered under California’s wage & hour laws. In this context the Court used the ABC test: A worker is an independent contractor when (a) he is free of control from the employer, (b) performs work not normally done by the employer and (c) is engaged in his own trade or occupation apart from the employer.

The WCAB held that the ABC test would be applied when deciding wage & hour law issues and the Borello test would continue to be applied when deciding employee/independent contractor issues ion work comp.

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.

Workers’ Comp Case Law Review

We continue to look at recent case law which shapes the legal practice at the many WCAB offices throughout the State.

Maxham v. CA Dept. of Corrections [ADJ 3540065] is an en banc decision.  This means that all the workers’ compensation Judges must follow the ruling as set out in Maxham.  If a panel decision is not an en banc decision – the Judges can look at it to see how the Commissioners in San Francisco are deciding the appeals that go their way; yet, the Judge does not have to follow the ruling.  There are seven Commissioners in San Francisco that decide workers’ compensation appeals.  Three Commissioners are assigned to each appeal.  There are conservative Commissioners and liberal Commissioners.  Sometimes a conservative panel will decide an issue one way and a liberal panel will decide the same issue aa different way.  Panel decisions break the tide since they are decided by all seven Commissioners.

In Maxham the Commissioners decided what can be sent to a Qualified Medical Examiner [QME] or an Agreed Medical Examiner [AME].  The QME or AME are the doctors who decide what disability should be awarded to the worker when the parties cannot agree on the findings of the primary treating physician [PTP].

Maxham noted that there are two types of documents that are normally sent to these evaluating physicians:

  1. “Information” (1) records prepared or maintained by the employee’s PTP & (2) medical and non-medical records relevant to determining medical issues.
  1. “Communication” correspondence which does not contain or make reference to any information as defined above.

In Maxham, the applicant [worker] attorney sent the AME a letter which contained his legal theories as well as an FCE [functional capacity exam] which was performed on the worker to see what he could or could not do after his injury.

By law the parties have to serve the opposing side a copy of the letter and documentation they want to send to the AME/QME 20 days before they send it in.  In Maxham, the defense objected to the worker’s attorney’s letter, yet, the attorney sent it anyway.

The defense requested a court date to punish the worker attorney for sending the letter to the AME over the defense objection.

The WCAB decided that the worker’s attorney had a right to write a letter explaining the legal issues involved in the case as long as it did not contain “information” which the other side objected to.

The WCAB held that the FCE should not have been sent to the QME without first getting permission from the other side or a court order.

In order to stay out of trouble, I always send the letter and whatever else I want to send to the AME or QME to the other side.  If they object, I request a court date to get the issue resolved.

In Mary Saunders v. Synergy Therapy [ADJ 1232266] the court sent back a disability due to insomnia since the doctor did not describe how the insomnia impacted the workers activities of daily living [ADL’s].  If you are an injured worker, always describe to the doctor (1) how the injury has affected your life & (2) how your medication helps you get your function back.  The more information you give the doctor, the better he will be able to justify the disability rating and/or need for medication.

In Fahte v. Mission Hospital [ADJ9328371] the Court explained how to get a Panel in a different specialty.  Normally the primary treating physician [PTP] in a workers’ compensation case is an occupational medicine doctor, an orthopedic surgeon or a chiropractor.  When the parties have a dispute, either party can object to the findings of the PTP and request a Panel of three [3] doctors from the Industrial Medical Council [IMC].  Normally, the Panel doctor will be in the same specialty as the PTP.

If there are additional body parts in a different specialty than the PTP and/or if the parties want a second Panel the party requesting the second Panel must” “show good cause to petition for an order issuing an additional panel.

Whether good cause exists is a factual determination to be made on a case by case basis.

Two common scenarios where good cause may exist for an additional Panel occur when (1) the PTP has opined on the compensability of a disputed body part and either party objects; or (2) where the original QME, who is required to report on all disputed issues requests an additional Panel in a different specialty to make the determination.

In cases where the worker is being provided treatment, the parties should first obtain the opinion of the PTP who – by regulation – is required to report on all disputed issues.

In cases where the additional body part is outside the expertise of the PTP, the PTP can refer the worker to a different physician for a consult.  If the PTP, does this, he/she must then incorporate the findings of the consult into his next report.

Once the parties receive the opinion[s] of the PTP or the consulting physician, either party can petition the WCAB for an additional Panel.

Stephanie Souza v. Napa Valley Unified School District [ADJ8911659] provides and excellent discussion of the access standards for an employer’s Medical Provider Network [MPN].

Every employer has an MPN with a list of doctors that they will authorize to treat the injured worker.  If the MPN is not adequate, the employee can choose a doctor outside of the MPN and the carrier will have to pay for that medical care.

Puente holds that a valid MPN must have a doctor willing to treat the worker within 15 miles or 30 minutes from the workers home or place of work.  The MPN must have a specialist who can treat unusual conditions between 30 miles or 60 minutes from the employee’ home or work.

The worker will not be allowed to designate a specialist as his/her treating doctor in order to get outside of the requirements.  For example, if the worker designates a pain management doctor and can’t find one within 15 miles of his/her home or work he/she cannot go outside of the MPN if there is an occupational medicine doctor within the required 15 distance.  As long as the specialist [pain management doctor] is within 30 miles/60 minutes of the home or work cite – the MPHN is OK.