Joint Degeneration and Age Discrimination

Welcome back from the weekend, my dear readers.  It was a good to see you all attend the funeral pyre of California’s MPN, but one can only hope our next meeting will be under happier circumstances.

Today, your humble blogger brings you a different case, William Slagle v. Department of Corrections California Men’s Colony.  Applicant, a 65-year-old dental lab technician instructor, was evaluated by an Agreed Medical Evaluator for various injuries to various body parts, among them his right knee.  The AME found that 80% of the damage sustained by applicant’s knee was caused by his industrial injury, but 20% was caused by non-industrial degenerative changes.

During his deposition, the AME said “the degenerative findings in [applicant’s] knee are related to the fact that he’s 64 years old.  I don’t think it is unremarkable for a 64-year-old person to have some degenerative changes in their knee.”

Applicant’s counsel seized upon this to claim that the award, based on the AME’s opinions, constitutes illegal age-discrimination in violation of Government Code section 11135.  Needless to say, the WCJ was not impressed, and neither was the Workers’ Compensation Appeals Board.  The fact that applicant’s age makes the degeneration of his knees “unremarkable” is not age discrimination.

The Court of Appeal likewise denied applicant’s petition for a writ of review.

But, as a defense attorney, I can’t help but think about the other side of the coin.  Let’s say a 35 year-old applicant sustains the same type of injury and the Agreed Medical Evaluator notices some sort of degeneration on his knee.  The AME then concludes that it is “remarkable” to find that sort of degeneration on a person of that age, so the damage must be industrial.

In the Slagle case, the AME noted that the degeneration found just three months after the date of injury appeared to have been present since before the date of injury.  In the case of a 35 year-old, perhaps it would be appropriate to ask the same question: is it possible that this much degeneration would have occurred only since the date of injury?

Different Strokes for Different Folks

In as much as you adore your humble blogger, one can only hope that you will forgive the pun in today’s blog post title.

Applicant suffered a stroke while working as a journeyman screen printer in the case of Francisco Amaya v. California Printed.  Mr. Amaya was given the job of printing thirty six flags and a deadline of 1:00p.m.  The trial evidence differed on whether he was assigned this task at 8:00 a.m., allowing for five hours, or at 9:30 a.m., allowing for three and a half hours.  In any case, because of the “stressful working condition” of having to make so many flags to print in so little time, applicant suffered a stroke.  Also contributing to the stroke was the fact that he had stepped on a spray can, causing him to fall to the ground.  Sounds pretty bad, no?

Well, some facts might clear this up.  Applicant suffered his stroke a little before 11:00 a.m., and at that time had completed six of his assigned thirty six flags.  So, that means that he had between 1.5 and three hours to print the six flags, leaving another 30 to be completed by 1:00 in the afternoon.  How many flags could YOU print in that short a time period? 10? 20?  Well, if you’re one of applicant’s co-workers, it would probably take you thirty minutes, which is what it took another employee who was assigned the remainder of Mr. Amaya’s workload.  Not so much of a “high pressure” situation any more, is it?

Also, what may have contributed to the stroke was the non-industrial and untreated “hypertension, hypercholesterolemia, and diabetes” which applicant had at the time of the stroke.

So, here is what the panel QME did with this case:

1)      He ordered a CT scan of applicant’s head, because head trauma “could have been a precipitating or enhancing factor.”  Without having seen the CT scan results, eh concluded that applicant’s stroke was caused by 25% industrial factors and 75% non-industrial factors.  When he later saw that the CT scan showed no head trauma, he declined to change his opinion.

2)      He also found that his stroke could have been a reaction to stepping on a spray can, but if he did not step on the spray can, the PQME would not change his opinion.

Here is how your skeptical blogger reads these facts: “well, I’m not going to let these facts let this guy walk away from this thing empty-handed.”

The defense argued that the PQME’s opinions do not constitute substantial medical evidence – this lunacy of a medical opinion does not justify its findings and seems unmoved by any shifting facts.  So, what do you think the Workers’ Compensation Judge did with this?

The WCJ threw it out of her courtroom!  She found that the PQME “did not explain the bases for his opinion that Applicant’s work activities … constituted 20-25% of the causation of the stroke, irrespective of the pace at which Mr. Amaya was required to work.”  The injury was ruled non-compensable, and applicant’s request to take a second bite at the apple further develop the record was denied as the PQME “has been given ample opportunity, through the deposition process, to provide support for his opinions… [he] has not provided the necessary support, and … further discovery such as another deposition is not likely to yield a properly supported opinion.”

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration and incorporated the WCJ’s report.

Curious about this Northern California PQME who hands out causation like it’s candy?  Please shoot me an e-mail for the panel opinion: gregory@grinberglawoffice.com

Permanent Total Disability for Non-Industrial Causes

California Labor Code section 4662 allows for a presumption of total permanent disability in cases of the loss of sight in both eyes, loss of use of both hands, practically total paralysis, and brain injuries resulting in mental incapacity or insanity.  Otherwise, “permanent total disability shall be determined in accordance with the fact.”

Originally part of the labor code since 1917, section 4662 was meant to provide for those completely devastating cases, where the employee reached permanent total disability in the course of service to the employer.  However, applicant’s attorneys have a more “equitable” use for this section.

In the case of Jesus Cordova v. Garaventa Enterprises (2011 panel decision), applicant sustained an injury to the cervical spine, lumbar spine, and left upper extremity when he fell off a tractor, yet held onto the steering wheel, causing his torso to twist.  The Workers’ Compensation Judge awarded applicant 100% PD, reasoning that his medically imposed physical restrictions, combined with the opinions of applicant’s vocational rehabilitation expert, rendered him completely unemployable.

Defendant naturally argued that applicant’s failure to learn to speak English (dare your humble blogger point out applicant’s 15 years of working in the United States?) and the applicant’s lack of success in adult education courses were not its fault.  (In fact, if “[a]pportionment of permanent disability shall be based on causation,” as Labor Code section 4663 commands, shouldn’t permanent total disability be apportioned as well?)

The WCJ, however, saw it differently:

“we all come to the job market with innate limitations.  It is axiomatic that there will always be certain jobs, given one’s level of intelligence, talents, education, characterological disposition, and innate body strengths and habitus that he or she will never be qualified for.  It would be inequitable to factor these into the equation, in determining whether a worker who has sustained a significant injury is totally disabled.  If we were to do so, no injured worker could ever receive an award of permanent total disability, regardless of how catastrophic his industrial injury might be.”

The Workers’ Compensation Appeals Board affirmed the WCJ’s decision.

Your humble blogger will point out, at this point, that there is a (sadly and regrettably) de-published, and therefore un-citable case, Hertz Corporation v. Workers Compensation Appeals Board (Aguilar), in which the Court of Appeal found, that “[t]he finding of vocational nonfeasibility was based in part on preexisting, nonindustrial factors, that is, Aguilar’s inability to read and write English.  Therefore … Herz is not liable for that portion of Aguilar’s permanent disability that is caused by preexisting nonindustrial factors.”

The WCJ’s opinion in this case is a dangerous one – applicant began working with a very limited scope of possible employment, and he was deprived of only a limited scope of employment by an industrial injury.

To suggest that the employer (or insurer) is liable for depriving applicant of a full spectrum of possible jobs, when applicant’s own decision not to learn English or his non-industrial inability to develop other job skills, had previously barred him from anything other than heavy physical labor, flies in the face of Labor Code section 4663.

In any case, efforts to have Aguilar published were met with disapproval by the California Supreme Court (See 2010 Cal. Lexis 7175 – petition for publication denied).  We can expect that future efforts to recognize as non-industrial such limitations as Messrs. Aguilar and Cordova brought to their employment will likewise be met with stiff resistance by the WCAB.

Court of Appeal Stands Up for the Law

On November 10, 2011, the sun dawned on a very different California.  The air smelled the same, the food tasted the same, but there was something different.  That difference was the sound that filled the atmosphere – the sound of the Court of Appeal standing firm for the law, as it was written, and consequentially for employers and insurers across the state.

In its November 10, 2011 unpublished decision in the case of State Compensation Insurance Fund v. Workers’ Compensation Appeals Board (James Dorsett) (which was subsequently ordered published, thanks to the efforts of the California Workers’ Compensation Institute) the Court of Appeal ruled that Labor Code sections 4663 and 4664 applied to the case at hand.

The facts are fairly straight forward – applicant glazier allegedly sustained an injury to the cervical spine in 2000 while working for employer A; and then allegedly sustained a cumulative trauma injury over the period of November, 2002 through June, 2004 while working for employer B.  Both employers were insured by State Compensation Insurance Fund.

The agreed medical evaluator opined that, although there are two injuries, the cumulative trauma was a compensable consequence of the specific injury, and the two injuries are inextricably intertwined.  However, during his deposition, the AME testified that he would apportion the level of applicant’s disability 50-50 between the two injuries.

The matter proceeded to trial and the Workers’ Compensation Judge awarded application 100% disability, reasoning that the two injuries could not be parsed out, presenting just one single injury.  Therefore, no apportionment applied.

Defendant SCIF petitioned the Workers’ Compensation Appeals Board for reconsideration, arguing that an injury could not both be a compensable consequence and a separate injury, and that the Labor Code required apportionment in this case.

The WCAB denied defendant’s petition.

Declining to give into discouragement, defendant then petitioned the Court of Appeal for a writ of review.

The Court of Appeal, in granting defendant’s petition, reasoned that if the doctor can “parcel out the causation of disability,” then separate injuries must be apportioned, even if they become permanent and stationary on the same date.

In this case, the AME testified to a 50-50 split in causation between the two injuries, satisfying defendant’s burden of proving apportionment.

Your modest blogger is an admitted cynic – but it’s mornings like these that irresistibly inject a bit of optimism into everyday life.

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.