Overtime Costs More Than Time and a Half

How long is your work day?  The attorneys I see slaving away over their files, your humble lawyer/blogger included, often put in ten to twelve-hour days, sometimes including evenings and weekends.  And, unless there is some extensive and complicated conspiracy amongst all the adjusters dealing with California workers’ compensation, the adjusters are seeing similar hours and overflowing work load.  Often enough, I hear surprise on the other end of the phone when a 7:00 am phone call is answered, but if you’re at work and making the call, why wouldn’t I be at work and taking it?

LinkedIn discussions place the problem with third-party administrators, underbidding and then overworking their employees, but the blame can be placed on the industry – higher costs, lower business revenues, and a worse situation for all involved.  A recent study by the Finnish Institute of Occupational Health and the University College of London, draws a link between overtime work and depression and higher risk of coronary heart disease.

Why should this matter for the workers’ compensation defense community?  Well, for one, we should all be keeping an eye on our own health (remember those New Year resolutions that have yet to gather the dust of a single month?)  Another reason this matters is that, if true (and even if it isn’t), you can expect to see psyche claims based on overtime, especially if the scent of layoffs is in the air.

Recently, we saw a case in which an applicant was awarded treatment and PD for a psyche “injury” because he couldn’t keep up with the requirement of using computers to do his work.  How long before we see regular claims for being asked (or volunteering) to work overtime?

Picture the applicant giddy at the prospect of earning more money through overtime pay, then collecting benefits after filing a claim based on being asked to work overtime.

So, when are you quitting tonight?

Post Termination Psyche Claims Barred? Not in My Workers’ Comp…

Your loyal blogger seems regularly at odds with panel decisions on the meaning of Labor Code section 5412, specifically as to the term “in the exercise of reasonable diligence should have known.”

In your blogger’s simple and straightforward world, the statute means what it says.  So, for example, if you pick up a box at work, feel a sharp pain in your back, and then your back hurts from that point on, the exercise of reasonable diligence quickly helps you connect the dots – one does not need a rocket scientist, a brain surgeon, or even a chiropractor to conclude that the disability flowing from that instance is industrial.  But enough of Grinberg’s world, back to the world of California Workers’ Compensation.

In the case of Bertha Chan v. Carl Karcher Enterprises, the panel came down in favor of the applicant.

Applicant was allegedly enduring a campaign of physical and verbal sexual harassment by her immediate supervisor, when her employment was terminated in December 2007.  Applicant then filed an application one month later, alleging psychiatric injury as a result of the alleged harassment.
The treating physician and the Panel Qualified Medical Evaluator both found industrially caused injury. But what about Labor Code section 3208.3(e)?

A cumulative trauma can’t be sudden;
There was no notice to the employer of the injury;
There was no medical record of the impairment prior to the claim;
The trier of fact specifically found there was no sexual harassment; and
The exercise of reasonable diligence would have lead applicant to conclude that whatever impairment she had sustained was industrial.

After all, either applicant had sustained an impairment or she hadn’t – if she had, it happened at work before being fired; if she had not had any impairment by the time her employment was terminated, then something other than work caused it.
Assuming she had sustained some psyche injury prior to the termination of employment, then how could physical and verbal sexual harassment on an ongoing basis not be linked to the impairment?

Your garden variety defense attorney is thus forced to watch logic prove a blunt tool in situations such as these. It is worth noting that the defense attorney in this case, in the filed answer, acknowledged that there was no evidence presented at trial of the concurrence of applicant’s disability and knowledge of the industrial causation of the injury.  But actual knowledge isn’t the standard; the standard is known or should have known.  The defense has petitioned for reconsideration.  I hope you will join me in waiting to see if, perhaps, some new life could be breathed into this defense.

Psyche Claims: Divide and Conquer

This is an interesting one, but it takes some clarity of thought to keep the party names straight.  Given that today is Friday, your ever-accommodating blogger simply replaced the names with party 1, 2, 3, etc.

Applicant is employed by Party 1, and sustains injuries to his back with three specific dates of injury and one cumulative trauma.  Applicant later leaves the employ of Party 1 and goes to work for Party 2, for whom he is still employed roughly two months later when he sustains another injury in a vehicle accident.

The Agreed Medical Evaluator on the case opines that 65% of applicant’s impairment was caused by the injury sustained while working for Party 2, and the remaining 35% spread out among the injuries sustained while working for Party 1.  With me so far?

Party 1 – 4 orthopedic injuries – 35% impairment causation

Party 2 – 1 orthopedic injury – 65% impairment causation

Applicant then amends his claim to include a psyche injury based on the orthopedic injuries.

The psyche AME concurs with the orthopedic AME in terms of causation.  So Party 1 and Party 2 raise their respective defenses.

Party 1 claims that the injuries sustained while applicant was in its employ are not the “predominant cause” of applicant’s psyche injury, as required by Labor Code section 3208.3(b)(1), and Party 2 claimed that applicant had not been employed for six months at the time of his injury, as required by Labor Code section 3208.3(d).

The Workers’ Compensation Judge knocked out the defense of Party 2, presumably because of the “sudden and extraordinary employment condition,” to wit, a car accident, that is not reasonably to be expected from landscaping work.  But, the WCJ did acknowledge and approve of Party 1’s “predominant cause” defense.

The Workers’ Compensation Appeals Board affirmed and the Court of Appeal denied review.  (Monty Lewis v. Workers’ Compensation Appeals Board (2011)).

Just a thought – let’s say applicant worked for four employers, one after another, and sustained an injury while working for each one.  If the evaluating physician apportioned 25% causation to each employer from the inevitable psyche injury, would the “predominant cause” defense bar the claim?

If the answer is yes, then no matter how legitimate the claim or debilitating the injury, the fact that multiple employers contributed to the impairment would help prevent liability for any of them.  A worthwhile defense to explore in similar circumstances, and a reason for multiple employers to pool their resources and spread causation out thinner than “predominant cause” can tolerate.

More Fraud, Waste, and Abuse Discovered in Bell

On Tuesday, your blogger expressed sympathy in reporting the town of Isleton, California, which lost its police department because it could not afford workers’ compensation insurance.  Today, that same blogger reports with outrage the stories coming out of Bell, California.

Bell, California, made news some time ago when it was discovered that its city officials were looting the public treasury, voting for high salaries for themselves at the expense of the city’s tax payers.  The city became even more (in)famous after being mentioned by this (someday will be) widely-read blog.

As the L.A. Times reports, “[m]ore than half of the disability retirements awarded to police officers under former Bell City Administrator Robert Rizzo – including those given to three police chiefs – should not have been granted, and workers’ compensation settlements for 13 officers were ‘exceedingly large.’”

Bell, which is self-insured for workers’ compensation, pays the extra awards out of its own withering pockets.

Bureaucracy allows these cases to fall through the cracks, and local governments such as cities and counties must be especially careful to make sure undeserved workers’ compensation awards are not handed out as a bonus or going-away present to law enforcement officers.

But the same rule applies to private self-insured employers and insurance companies as well – it not uncommon for employees to attempt to pad their retirement accounts with un-taxable workers’ compensation pay-outs on the way out the door.

When the citizens of Isleton ask why they can not have a police department, perhaps the citizens of Bell can provide them with an answer.

Medical Treatment Starting When? Objection!

In a continuing effort to make your life easier, an applicant’s attorney is claiming that a treating physician’s recommendation of medical treatment, in this case in-home care, dates back to the date of injury, five years ago!

What are you to do?

Well, in a turn that has left your somewhat-less-now-than-before cynical blogger a bit surprised, a Workers’ Compensation Judge and the Workers’ Compensation Appeals Board have sided with justice, fairness, and (the third of this wonderful trio) the employer!

In the case of Gloria Arana v. Hawthorne School District, a teacher’s aide sustained an injury in the year 2000 which, after a surgery in 2002, rendered her 100 percent permanently disabled.

The treating physician, and it appears there were no qualified or agreed medical evaluators used in this case, recommended in-home support eight hours per week and out-of-home support, such as grocery shopping, four hours per week.  This was a 2007 report, and the treatment recommendation was for 2002 and ongoing.

Defendant was faced with a demand for reimbursement of roughly 3000 hours of home care, and the continuing award of treatment for the “foreseeable future.”

The defense did not dispute the obligation to provide medical treatment in the future, but naturally objected to liability for treatment “prior to the date of a medical report establishing [the medical treatment’s] need.”

Any other result would have been ridiculous – the employer would have had no opportunity to contest the necessity of the medical treatment, negotiate a cheaper price from one of its providers, or rely on any of the other defenses usually available in such situations.  Unfortunately, history has shown that a preposterous result is not one to make the workers’ compensation system flinch.

Let a full-fledge WCDefenseCA salute issue to the WCJ and the WCAB for their wise and proper decision in this case.