Employer as Nanny

I hope my dear readers had a wonderful Thanksgiving.  I wish I had a great decision to show you on this welcome-back-to-work morning.  But, sadly, all I have for you is more pocket-picking of a California employer.

The Court of Appeal recently declined to review the decimation of Bridgestone Firestone in the case of Bridgestone Firestone v. Workers’ Compensation Appeals Board (Ronald Fussell).

Applicant, a diabetic, was a territory manager for defendant-employer when he sustained an industrial injury to the left ankle.  Following two surgeries and the use of a custom ankle brace, applicant eventually returned to work, only to have his condition worsen.  Ultimately, applicant underwent an amputation of his left leg below the knee.

The Workers’ Compensation Judge found applicant to be 100% disabled, and awarded over $220,000 in attorneys fees to his attorney, and COLA payments beginning in 2004 (the WCJ’s award predates the Supreme Court decision on proper calculation of cost of living adjustments).  In doing so, the WCJ rejected the opinion of the treating physician that 40% of the disability was caused by applicant’s “non-industrial non-compliance with activities of daily living …  non-compliance has every thing to do with choices that the patient makes on his own, despite knowing that he is not following the doctor’s recommendations.”

The basis for this rejection was applicant’s testimony that, because he lived in a second-floor apartment and there was no elevator, he had to “hop” on crutches to get up the stairs, and could only use the doctor-recommended wheel chair while actually in the apartment.  The WCJ reasoned that the defendant could have built an elevator for applicant or, in the alternative, relocated applicant.  Therefore, it was all defendant’s fault and no apportionment is called for.

I suppose the image of a cackling adjuster comes to mind, smoking a cigar and smiling sinisterly at the thought of the poor applicant not being able to effectively use his medical equipment.  The more likely scenario, of course, is that applicant said nothing to his doctors, employer or the adjuster until it was too late.  There was likely never an opportunity for defendant to act, because there was no knowledge of a need to act.

Medical apportionment based on applicant’s pre-existing diabetes was likewise rejected, on the grounds that applicant had never sustained trauma to his left ankle before the industrial injury that was the subject of this case.  The opinions of applicant’s treating physicians, concluding that the diabetes had slowed the post-surgical recovery process, did not sway the WCJ or the WCAB.

Before defendant could blink, a simple left ankle injury resulted in an amputation and a 100% PD award.  The only parting advice I could offer from this case is to obtain accurate living conditions information from the applicant, such as where he lives and his domestic set-up.  This can be done through a deposition or through a written questionnaire (although a deposition is preferable).

With this information, it is possible to keep the treating physicians apprised of whether their recommendations are feasible given the applicant’s circumstances.

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