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’ Compensation Appeals Board

The Law Office of John A. Don will continue to bring you up to the minute determinations of the Workers’ Compensation Appeals Board [WCAB].

In the case of SCHENDEL V. B&B STATE [ADJ3568698 – Marina del Rey], the Appeals Board concluded that the parties can Stipulate to opt out of the Independent Medical Review process.

By way of background, as of 2013, all medical disputes must be solved by using the UR/IMR process.

UR stands for Utilization Review.  In order to obtain medical care in California workers’ compensation, the Primary Treating Doctor [PTP] must fill out a Request for Authorization [RFA].  The workers’ compensation insurance adjuster has 7 days to decide whether they will approve the treatment request or submit it to UR.  The adjuster will usually contract an agency to review the RFA and make a recommendation as to whether the medical care requested meets evidence based medical standards.

The evidence based standards are contained in a work called the MEDICAL Treatment Utilization Schedule [MTUS].  If the PTP’s request meets the MTUS guidelines the RFA should be approved.  If UR determines that the RFA does not meet the MTUS guidelines, the worker can appeal this treatment denial to MAXIMUS Federal Services – an agency contracted by the State of California to make the final decision when it comes to industrial medical care.

MAXIMUS is denying about 91% of the treatment requests that they get, so, if there is any way to avoid using MAXIMUS that would greatly help the worker get better medical care.

In the SCHENDEL decision the WCAB held that where the parties STIPULATE to used an Agreed Medical Examiner [AME] to make treatment determinations the adjuster is “obligated to adhere to the terms of the parties’ stipulations that further medical treatment would be authorized per the opinion of the AME.”

Many defense attorneys write into work comp. settlements a provision that future medical care will be per the AME.  If you have a settlement, you can look at the boxes where a lot of the legal terms are typed in and see if the adjuster wrote that in.  If they did, you can argue that your doctor’s RFA should not be sent to MAXIMUS but should be sent to the AME who is much more likely to approve the treatment request!

In BILLICK v. HUGHES AIRCRAFT [ADJ887768 – Monterrey], the WCAB held that applicant’s left injury suffered in a fall at home was a compensable consequence of his back injury – and,  as such – was the responsibility of the work comp. carrier.

A compensable consequence injury is one that is caused, in whole or in part, by the underlying industrial injury.  In BILLICK, the worker had a very bad back injury and kept falling at home.  One evening, he fell while going to the bathroom and messed up his hip.  The insurance attorney tried to argue that the injury was the workers’ own fault and that his client – the insurance company – did not have to pay for it.

The WCAB explained that since the fall was caused by the industrial injury – the insurance company was on the hook.  Other examples of compensable consequence injuries are those suffered on the way to the work comp. doctor’s appointment or those caused by medication taken due to the industrial injury.

Presently, I am litigating a case where the anti-inflammatory medication caused an ulcer in my client’s stomach which led to internal bleeding and blood loss.  The worker lost so much blood that – as a result – he was diagnosed with leukemia.  If I can prove the causal connection, the work comp. insurance will need to pay for his cancer medication!

In FERNANDEZ v. MERCHANT’S LANDSCAPE [ADJ10268949 – Anaheim] the WCAB explained what it takes to prove a post-termination defense.  According to Labor Code Section [L.C.] 3600(a)(10) an employee cannot file a claim after he/she has been terminated unless he/she can show medical evidence prior to the termination describing the injury or the date of injury occurred after the termination.

You may ask, how can that be?  How can anyone hurt themselves after they have been terminated?

Well according to L.C. Section 5412, when dealing with a cumulative trauma [an injury that happens over time] the date of injury is when the worker (1) first realized that he/she was hurt & (2) suffered a disability; so, if the worker did not lose any time off work prior to the termination – the date of injury can very well be after the termination and the post-termination defense would not work!

While we are on the subject of terminations, in KEITH v. DOLLAR TREE [ADJ9719810] the WCAB discussed whether the insurance had to pay a worker temporary partial disability when the employer alleged that the worker was terminated for cause.

Temporary disability are payments the worker gets while they recover from the injury.  The workers’ compensation insurance has to pay 2/3 of the workers’ salary until the worker can get back to work or the doctor releases him/her from care.

There are two types of temporary disability: (1) temporary total disability [TTD] means the worker can’t work; (2) temporary partial disability [TPD] means the worker can do light duty.  If the employer does not provide light duty, the worker gets the disability payments.  If the employer provides some work – but not the full 40 hours – the insurance must pay the worker 2/3 of the difference between the regular pay and the light duty pay.

If the employer can show that the worker was terminated for cause, the insurance does not have to pay any TPD since the reason the worker is not working is not due to the injury – but – it is due to the termination for cause.

In KEITH the court held that the employer had no good reason to terminate then worker and awarded the worker his disability payments.

The case of DELAO v. STATE OF CALIFORNIA [ADJ3632525 – San Bernardino] discusses the use of the Multiple Disabilities Table [MDT].  Normally, when a worker suffers injury to several boy parts, the treating doctor or evaluating doctor will provide percentages for each body part.  These percentages are then combined using a chart that is found in the Permanent Disability Rating Schedule [PDRS].

If the worker has three body parts injured and each body part rated to 50%, adding the three body parts would give you a 150% disability.  Since the highest disability anyone can have is 100% disability the MDT is used to “shrink” the lower or “next in line” disability so that they don’t add up to more than 100%.  As an example two 20% disabilities are combined for a final disability of 36%.

The problem is that sometimes it makes no sense to combine the disabilities.  If the worker had a bad left knee and a bad left shoulder – it would make it more difficult for the worker to get around since he/she could not use a cane with the bad shoulder.  As discussed in Delao, in these types of cases, the

Judge is allowed to add the disabilities instead of combining them so that one of them shrinks.

Workers’ Comp Case Law Review

California Workers’ Compensation Case Law Review

As part of my efforts to help injured workers and their representatives, I am starting a case law review which shall contain weekly or bi-weekly discussions of up to the minute decisions from the WCAB.

Whether you are an injured worker seeking guidance on a particular issue or an attorney trying to hone up on the law, these case reviews will provide you with valuable information about the inner workings of the workers’ compensation system.

If you have questions about the material or want to discuss the concepts further, please feel free to contact me at or 619.338.9012.  If you are an injured worker, I provide free consultations on any topic or issue that may come up in your case.

Also, if you want to read the full case being outlined, you can subscribe to the Work Comp Central Panel decision service and get close to 100 Panel decisions every month.  You can type in the ADJ number (case number) into the search engine to get the full decision on your computer.

Preliminary Discussion

As a preliminary discussion, the Department of Industrial Relations is the State entity responsible for administering the workers’ compensation system in the State of California.  You can obtain a great deal of information from their web page at:

There are approximately 26 local offices of the Workers’ Compensation Appeals Board throughout the State of California.  Each of these offices employs workers’ compensation judges (WCJ’s) to decide disputes which may arise between the injured worker and the insurance company.  If either of the parties disagree with the decision of the WCJ, he/she can appeal to the Appeals Board in San Francisco.

There are two main vehicles to reach the WCAB in San Francisco.  If the party is appealing a final order, the party must file a Petition for Reconsideration within 20 days of the WCJ’s decision (extended by 5 days for service by mail).  If the WCJ’s decision involves an interlocutory order (i.e. a procedural order which does not determine the substantive rights of the parties) the order must be challenged by a Petition for Removal.

An example of a substantive order which merits a Petition for Reconsideration is a decision that the worker did not injure herself at work.  In contrast, an example of an interlocutory order would be an decision that the worker is entitled to see a different doctor than the one requested by the insurance company.

All the decisions presented here have been appealed from the local WCAB courthouse to the San Francisco Appeals Board.  Once it gets to San Francisco, the case is assigned to a three member panel of commissioners who will decide the issue.

Ramos v. Troy Lighting (ADJ2231165)

The first case being discussed today is Ramos v. Troy Lighting.  In that case, the insurance company wanted to dismiss the workers case due to lack of prosecution.  The WCAB cited to WCAB Rule 10582.  You can find all these rules online or go to the law library.

8 California Code of Regulations [CCR] 10582 states that “Unless a case is activated for hearing within one year after the filing of the application for adjudication… the case may be dismissed after notice and opportunity to be heard.  Such dismissal may be entered at the request of an interested party or upon the Appeal Board’s own motion….  A case may be dismissed after issuance of a ten (10) day notice of intention to dismiss and an opportunity to be heard.”

When dismissal of a case is sought by a defendant, WCAB Rule 10582 also requires that defendant first send a letter mailed to the applicant and, if represented, to the applicant’s representative more than 30 days before the filing of the petition for dismissal and then attach a copy of that letter to the actual petition when filed at the courthouse.

In Ramos, the WCAB vacated a dismissal order because the insurance had not properly notified the worker.

The takeaways from this case are:

(1) open your mail to make sure you are not being served with notice of an intention to dismiss your case,

(2) communicate with the insurance once a month – or – if represented, with your attorney once a month to make sure they don’t think you have abandoned your case, and

(3) always let everyone know if there is a change of address.

I am presently helping a worker whose case was dismissed because all the notices were sent to an old address.  If the insurance can show that the worker never told his old attorney about the address change, the Judge may find that it is the worker’s fault that his case got dismissed!

Mitchell v. City of Los Angeles ADJ10591383

The next case we are discussing today is Mitchell v. City of Los Angeles.  Here, the defense attorney signed a settlement stating that the worker would get benefits based on the rates in place at applicant’s date of death 2015 instead of applicant’s date of injury 2002.  In 2015 the death benefit was $250,000.00; in comparison in 2002, the death benefit at $125,000.00.  The Judge approved the settlement at the $250,000.00 amount which had been signed by all parties.  Once the insurance found their mistake, they tried to have the settlement “undone”.  The WCAB held that there was no good cause to “undo” the settlement.

This case teaches us that is critically important to read the settlement you are signing and make sure you understand what it says.  Once the WCJ approves the settlement, it is very difficult to get it overturned.

Many times I have workers call me who are unhappy with the settlement they had signed.  Sometimes they say that it was not explained to them properly or that their prior attorney scammed them into signing something that they did not intend to sign.  I usually tell these people that it’s too late.  All the questions about the settlement should have been discussed prior to signing the documents; once the ink dries it’s too late to come back to court with “buyer’s remorse”.  If the attorney actually scammed the worker, he/she should be reported to the State Bar of California at:


Workers’ Compensation Impact for Medicare and Medi-Cal Recipients

A question which frequently comes up during settlement discussions is whether the workers’ compensation settlement will affect a worker’s Medicare or Medi-Cal benefits.  

The first issue to clear up is the two ways that the worker can settle their workers’ compensation claim.  The first is by way of “Stipulation” keeping future medical care open.  The stipulation will describe the parties that are involved in the case, the body parts that are injured, the benefits paid to date and the percentage of permanent disability.  Each percentage point of permanent disability is approximately $1,000.00.  The higher the percentage, the greater dollar amount tied to that percentage point.

A stipulation will keep the medical care open for the body part that is being settled.  There are two areas that call for vigilance on behalf of the worker:

(1) Make sure that all the body parts are included in the settlement.  The relation to a disputed body part to the work injury should be established before going to court to settle the case.  Once you get the settlement conference, it might be too late to start adding body denied parts to the agreement.  The body parts noted in the agreement will impact what medical expenses Medicare will pay for, so this is something that must be thought out and properly described in the settlement.
(2) The second area which must be looked at carefully is all the language the insurance company will put in the boxes provided by the settlement form.  Many times they will say that mileage and out-of-pocket expenses are being resolved.  If these expenses have not been paid, then, that note in the settlement should be crossed off.  The defense attorney may try to “sneak-in” the resolution of some rights that have not been bargained for.  The worker and his/her attorney must be alert to this tactic and make sure that the settlement reflects what the parties intend to resolve.

The second type of settlement is called a “Compromise & Release” (C&R).  This type of settlement normally closes all aspects of the case.  Once the Judge approves the C&R, it will be next to impossible to undo the agreement.

When the worker stipulates his/her case, the payments are made in bi-weekly installments of approximately $580.00 every two weeks.  So, for example, if a worker settles his/her case at 15% permanent disability (PD) – the worker will be paid $14,645.00 at $580.00 every two weeks.

A C&R will normally pay the settlement amount in a lump sum.  If the worker with the 15% PD negotiates a “buy-out” of his/her medical care for an additional $20,000.00 that worker will receive a check for: $14,645.00 + $20,000.00 =  $34,645.00.  Many times the insurance will start the PD payments before the settlement date.  If prior PD payments are made, these would be deducted from the settlement.

If a worker is receiving social security at the time of the settlement, the work comp insurance will not settle the claim for more than $25,000.00 without first talking to Medicare and seeing how much Medicare thinks the workers should get for his/her medical care.  About thirty years ago, the federal government enacted statutes that protect the interests of Medicare.  The federal government realized that many injured workers were not getting enough money to settle their future medical care and were asking Medicare for help once the money ran out.

The laws now state that if the parties ignore Medicare’s interests when settling their claim:

(1) Medicare may refuse to pay any medical care for the industrially injured body part(s) and
(2) If Medicare does pay, they may come after the parties for reimbursement.

Once the parties talk to Medicare, and Medicare tells them how much the worker has to be paid, the parties are safe and Medicare will not determine that their interest were ignored.

If the injured worker wants to assure himself/herself that Medicare will “pick up the tab” when all the workers’ compensation money is used up, the worker must show Medicare that every penny of the work comp medical money was used to pay for medical expenses.  If the worker shows Medicare that he/she did use up all his Medicare approved medical care monies for medical care then, Medicare will normally step in and pay for medical expenses once that money is used up.

Many of my clients fret over the forms that are given to them noting all the responsibilities they must take upon themselves in order to protect Medicare.  If the worker does not plan to ask Medicare for future help for the industrial body parts, the money may be spent on the necessities of life. However, if the worker cannot show that the money was used for medical care, Medicare will no longer be responsible for future costs.

Sometimes a C&R settlement is so large that the insurance company will want to structure the payments.  For example, instead of giving a worker $250,000.00 in a lump sum, the insurance company may put $150,000.00 in an annuity that will pay the worker $10,000.00 a year for the rest of his/her life.  There is usually some “up-front” money to start off the payments and then the yearly amounts are allotted.

In these types of cases, the worker would have to show Medicare that his/her yearly amount was used for medical care.  Once that is done, Medicare would cover the costs until the next year.

There is another aspect of the settlement which could impact your social security checks.  If the worker is not over 62 and is getting social security disability insurance; social security will take a credit for any monies paid out by workers’ comp for the same disability social security is paying for.  For example, if a worker injures her knees and can no longer walk, she may qualify for social security disability payments.  If these payments are $1,000.00 a month once workers’ comp starts paying – social security will stop until the work comp payments are all paid out.

So what happens if a 35 year old worker who is getting social security because of the industrial injuries settles her claim for $45,000.00?  Let’s say $20,000.00 is due to the disability and $25,000.00 for medical care.  How much will social security  deduct from each check?  What would happen is social security will divide the $20,000.00 disability payment throughout the expected life of the injured worker.  If the worker is expected to live another 50 years, then, the $20,000.00 is divided by 50 = $400.00 a year or $33.33 per month.  Social security will deduct $33.33 from each monthly social security check.  This calculation should be included in the settlement to

(1) show social security that their interest were taken into account and
(2) to show them how much should be taken out each month.

Social security will do their own calculations, but they may adopt what the settlement says as an accurate reflection of the worker’s life-span and monthly payment deduction.

When it comes to Medi-Cal we are looking at a different concern.  In order to qualify for Medi-Cal a worker can only have a certain amount of money in the bank.  A huge settlement may disqualify the worker and his/her family for Medi-Cal benefits.  The safest way to better ensure that nothing bad happens is to take the settlement to social security or Medi-Cal prior to signing.  That way there are no surprises down the line.

The final issue that must be covered is conditional payments.  These are medical bills paid by Medicare or Medi-Cal prior to the settlement.  If these are not paid back, Medicare and/or Medi-Cal can come after the worker’s social security checks for reimbursement.  The general rule of thumb is to never sign a settlement when Medicare has paid prior medical care for the industrial injury until Medicare/Medi-Cal are fully reimbursed.

Workers’ Compensation Settlements

A settlement in workers’ compensation is based on two main components:

(1) the permanent disability percentage and

(2) an estimate of what future medical care will cost for the industrial injury.


The permanent disability aspect of the claim is calculated by first making a determination of the worker’s whole person impairment (WPI).  This calculation is determined, at first, by the worker’s primary treating doctor (PTP).  Once the PTP has finished providing active care, he/she will write a permanent and stationary report (P&S) report describing the impact the injury has on the worker’s activities of daily living (ADL).

From 2004 to 2013, the WPI figure was adjusted by a variable diminished future earning capacity (DFEC) factor.  This factor would multiply the WPI number by a factor from 1.1 to 1.4 depending on the body part.  For example, if the State thought people with a shoulder injury normally suffered a greater diminished earning capacity compared to a knee injury, the shoulder injury would be multiplied by a bigger factor than the knee injury.  This was an effort by the State of California to even out what injured workers would get by way of a permanent disability award.

After 2013, the State decided to give all body parts the same factor of 1.4.  After the WPI is multiplied by the 1.4, the disability rater would factor in age and occupation.  Generally, the older the worker and the more arduous the work, the greater the disability.


The second component of a workers’ compensation settlement is the value the parties place on future medical care.  Certainly, a worker who may be looking at future surgery will need more money to settle his/her claim than a worker who only needs over-the-counter medication to alleviate his/her condition.

If the worker is on social security, the workers’ compensation insurance must account for MEDICARE’s interest in the settlement.  MEDICARE does not want the injured worker knocking on their door for medical care related to the industrial injury.  For this reason, the Federal Government has passed legislation which prohibits the settlement of a workers’ compensation claim without taking MEDICARE’s interest into consideration.

In order to comply with the Federal Statute, the workers’ compensation carrier must make a legitimate determination of what the workers’ lifelong medical care will be.  Usually the carrier will contract with a MEDICARE specialist who will take into account the worker’s last two years of medical care and come up with an amount.

Sometimes, if the MEDICARE amount is too high, the parties will consider a structured settlement.  With a structured settlement, the carrier deposits a lump sum amount into a back which will grow each year by accruing interest.  For example, if the MEDICARE set-aside is $750,000.00 over the next 30 years, the carrier may only need to put $500,000.00 into the bank account in order to pay the $750,000.00 required by the MEDICARE set-aside.

The carrier does not have to close the case and pay out a large sum of money if they don’t want to.  This type of settlement can only be reached if both parties are in agreement.  If the parties cannot agree on an amount, or the amount is too high, the case will be settled by way of Stipulation.  With a Stipulation, only the permanent disability aspect of the case is paid out to the worker.  Medical care for the industrial injury remains open for the rest of the worker’s life.

The worker can request an advance from the settlement.  If the carrier refuses to pay the advance, the carrier can Petition the Workers’ Compensation Appeals Board (WCAB) for a commutation of funds.  Whether or not the Judge will order the carrier to pay a lump sum is totally discretionary.  The Judge will have to determine what is in the worker’s best interest.

For additional information on workers’ compensation settlements, contact our office TODAY!