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.

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.

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.

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.

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.

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!

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.