Single Partial Dependent: $25k or $40k in Death Benefits?

*** UPDATE*** Court of Appeal has denied a petition for a writ of review.

An interesting panel decision sided with the defense on the issue of death benefits, and your ever-informative blogger is eager to share it with his ever-informed readership.  (The case is Devon Davis (Dec’d) v. Harrison & Nichols Trucking).

Employee-driver dies in as a result of an industrial injury, and his widow and minor son petition the Workers’ Compensation Appeals Board for death benefits.  Following a trial, the workers’ compensation Judge awards $250,000 to the decedent’s son and $25,000 to the widow.  The WCJ, however, reserves jurisdiction to determine if the son will be considered mentally incapacitated at age 18.

Both sides petition for reconsideration.  The widow claims that Labor Code section 4702(a)(2) allows, in cases of one total dependent and one or more partial dependents, a death benefit of $290,000, with $250,000 going to the total dependent.  Under her theory, she gets the remainder of the pot, which is $40,000.  The Judge, however, rightly rejected this argument in favor of Labor Code section 4703, which caps the recovery of partial dependents at $25,000.  The WCAB affirmed this decision and denied applicant’s petition for reconsideration.

Defendant’s petition for reconsideration, however, had to do with the WCJ reserving jurisdiction to determine the son’s dependency when he should join the age of majority.  The WCJ reasoned that it would be premature to make a determination as to the son’s capacity to work.  Here, the WCJ ran afoul of Labor Code section 3502, which requires determinations of dependency to be made at the time of injury of the employee.

Of interest here is that the WCAB, in dicta, noted that there was no evidence in the record to establish the widow’s dependency, but that the issue was not raised by the defense.  There are explanations for this – prior agreements between the parties, defects in the record, or simply an administrative gap between the record and the documents delivered to the WCAB.

In any case, it serves to point out that the issue of dependency should not be taken for granted – the Death without Dependents unit certainly yields no ground on this point lightly – nickels, dimes, and dead men’s shoes are all fair targets.  Well, neither should you – there is no reason why the defense should presume dependency, even if the Board and the applicant’s attorney are rushing to do so – there are all sorts of living arrangements with secondary income, cash jobs, etc.  A little snooping can go a long way.

Horseplay Defense Fails Yet Again

More and more, the horseplay defense appears to be no defense at all.  In the case of Robert Baeza v. Federal Express, the Workers’ Compensation Appeals Board denied defendant’s petition for reconsideration of the workers’ compensation Judge’s finding that the defense did not apply.

Applicant was collecting paperwork when a co-worker came into the office and “bumped” into him.  At trial, the co-worker testified to a playful bumping, horsing around.  Applicant was not amused.  Citing a general dislike for the co-worker, applicant shoved him back hard, intending to show displeasure but not to play around.  Applicant, apparently, bit off more than he could chew and ended up in the hospital, later claiming an injury to the left eye, bilateral upper extremities, left hand, and left knee.

The WCJ held that, because applicant himself was not engaged in horseplay, the horseplay of other employees can not provide a defense to the self-insured employer.

This case may sound familiar, and it should.  These facts are similar to those in the case of Sergio Nufio v. Bridge Hospital, LLC.  If two employees are horsing around, and one gets hurt, what’s to stop the hurt one from saying that he wasn’t having fun?  Unfortunately, the horseplay defense seems far too easy to defeat, and an overwhelming amount of evidence, usually from co-workers, will be needed to defeat an applicant’s version of the events.  But are you really going to find a lot of employee witnesses eager to testify against a co-worker?

Serious and Willful Misconduct Filed by Tommy Jenkins

You remember Tommy Jenkins, don’t you?  He was your classmate in eighth grade who used to brag about how fast he could run.  When you didn’t believe that he was the fastest kid in school, he offered to prove it by pinching the neighborhood dog and outrunning him to the safety of the tree house.  Naturally, when Tommy got a cramp from all the candy he had been eating and ended up being bitten by the dog, he blamed you for putting him in the situation…

Tommy grew up and tried out for the Los Angeles Fire Department.  In the case of Michelle Mapstead v. Workers’ Compensation Appeals Board (writ denied), applicant filed a claim against the City of Los Angeles for her injuries sustained while involved in a firefighter training course.

Apparently she fell during an “up and over” exercise drill, sustaining injury to her back, chest, and respiratory system.  Although her case-in-chief settled, she continued to press her Serious and Willful claim against the City.

Serious and Willful misconduct, government primarily by Labor Code sections 4553 and 4553.1, requires the meeting of a fairly high standard for an applicant to meet in order to increase the amount of applicant’s recovery by 50%.  Basically, the employee needs to prove that the conduct of the employer, manager, or supervisor amounted to “an intentional act or an intentional failure to act, either with knowledge that serious injury is a probable result, or with a positive and active disregard for the consequences.”  (Johns-Manville Sales Corp. v. Workers’ Comp. Appeals Board)

Evidence presented at trial reflects that applicant had qualified for the firefighter program in 1994, but was put on the wait-list due to a hiring freeze.  She stopped keeping herself in that level of physical fitness about a year later, already giving up hope of ever being admitted into the program.  In 1998 she was offered enrollment into the program and she happily accepted, beginning the rigorous training program.

On the day of her injury, she was engaged in various drills, including the “up and over” drill.  As the various drills continued, she began to grow tired and feel weakness in her hands, although she kept this fact to herself and didn’t tell her supervisors.  Eventually, while climbing a 70-foot ladder as part of the drill, she fell and sustained her injury.

Her theory on the serious and willful claim, which probably had just enough merit to it to avoid a countersuit for malicious prosecution, was that the screening tests (like the one she passed in 1994) were inaccurate and that the Fire Department staff didn’t properly observe her to note her fatigue.

The workers’ compensation Judge, the WCAB, and the Court of Appeal all sided with the defense, reasoning that the conduct of the defendant was not malicious or reckless or intended to cause harm.  Applicant simply could not make the cut – she had done the same drill 18 times before, but was worn out by a mixture of other drills.

But let’s look at the other side of the argument.  Your humble blogger recognizes that as an attorney, his work does not often have the effect of life-and-death (there are rare moments when my expertise is sought to resolve knife-fights based on confusing Law and Order episodes, however).  But this is not the case for a firefighter – citizens depend on firefighters to protect their lives and property.  Firefighters depend on each other to get in effectively and get out safety.

Applicant failed to keep herself in proper physical shape to perform the job.  She failed to disclosure the physical limitations that developed between her physical screening and her entry into the academy.  She concealed her growing fatigue from her fellow trainees and instructors.

Had she, by some cruel twist of fate, become an active firefighter, who knows the lives and, of lesser importance, property that could have been lost through her unwillingness to communicate her limitations to her fellow firefighters.  And, after all this, she has the nerve to accuse the defendant of serious and willful misconduct.  Tommy Jenkins, alive and kicking.

No Temporary Disability for Fired Employees (Even Those Trying to Save the Beer!)

Temporary disability payments provide an applicant with 2/3^rd of his or her income while applicant can’t (or won’t) work.  What happens when applicant’s employment is terminated for cause while applicant is still “temporarily disabled”?  The obvious answer is a 132a claim, but one can expect allegations of discrimination no matter how egregious the applicant’s conduct was during the time leading up to the firing.

In the case of Ramon Flores v. Wal-Mart Associates, Inc., there was no 132a claim.  However, applicant was a door-greeter at Wal-Mart.  He noticed two individuals trying to leave with boxes of beer and, suspecting them of stealing, tried to stop them.  In a fit of alcohol-thirsty rage, the thieves knocked the brave applicant over and made their escape.  The fall was the mechanism of injury.  While giving his account of what happened, applicant was fired for violating firm policy.

My loyal readers may recall a similar case from the early days of this blog, where another employee exceeded his express duties of serving to “observe and report” by trying to catch bandits and sustaining an injury instead.

At trial in the Flores case, the defendant offered evidence that applicant as fired because he violated the company’s policy regarding shoplifting – a couple of cases of beer are not worth getting injured over, and they are especially not worth an employer paying the costs of a workers’ compensation claim.

In fairness to applicant’s position, your humble blogger must confess that the thought of perfectly good beer being kidnapped by thugs and eventually meeting a cruel fate in some horrid alley or parking lot triggers a considerable protective instinct that is hard to resist.  Nothing would bring me greater joy than riding to the rescue of said beer and enjoying the sweet rewards such libations have to offer.  Sadly, though, I am aware that we must all resign ourselves to helping the prosecution build a case against shoplifters and some amount of alcohol must be sacrificed in the process.

The workers’ compensation Judge ruled that applicant was entitled to temporary disability payments.  The defendant filed for reconsideration and the Workers’ Compensation Appeals Board granted, reversing the WCJ.  The reasoning in this case is key – citing Gonzales v. WCAB, the Board noted that temporary disability is a benefit which is paid while a worker is unable to work because of a work-related injury.  Here, applicant was unable to work, but not because of a work-related injury.  Instead, applicant was unable to work because he had violated a company policy and lost his job.

Wal-Mart deserves credit for having a clear company policy, regularly explained to the employees, and consistently enforced.  If another worker had received a medal for trying to stop shop-lifters, Wal-Mart would have been paying temporary disability and 132a supplemental benefits as well.

Court of Appeal Rules on Sudden and Extraordinary Case

Your humble blogger was at his post yesterday, diligently fighting off claims and liens, when he suddenly received an alert of extraordinary nature.  The Court of Appeal, in an opinion posted only yesterday afternoon, has rendered its decision in the case of State Compensation Insurance Fund v. Workers’ Compensation Appeals Board, granting the relief sought by the defense.

In short, falling from a tree or ladder, while sudden for everyone and extraordinary for some professions, is not an extraordinary event for fruit pickers (avocados are fruit, right?)

Applicant Rigoberto Garcia had been working for his employer picking avocados from 35-foot-high avocado trees, using 24-foot ladders for roughly two months, when he suddenly fell from a ladder, sustaining various injuries, including an injury to the head. All aspects of his claim were admitted… except for the psyche claim.  The defendant raised the Labor Code section 3208.3(d) defense to psyche injuries claimed by employees with a less-than 6-month tenure.  This defense has been explored a time or two on this blog as well.

Applicant offered his own testimony at trial on the issue of the defense, claiming that he had never seen any other workers fall from a ladder with this employer, and was not warned at any time that this risk was common.  Defendant offered no evidence.

The workers’ compensation Judge found the injury was sudden and extraordinary, and the defendant filed for reconsideration.  The question that went before the WCAB was whether falling from a 24-foot ladder was a common risk to 35-foot avocado tree pickers, much like burning one’s hand while working as a drycleaner.

A split panel denied reconsideration, with the majority taking issue with defendant’s failure to present any evidence at trial as to the common occurrence of such falls.  In all fairness, the defense failed to carry its burden of proving the existence of gravity – the lawyers no doubt cursed themselves for failing to invest in apple orchards.

But, as all things that go up must come down (and there is nothing extraordinary about that), so, too, with applicant’s luck in the courts.  Defendant petitioned the Court of Appeal for a writ of review, arguing, again, that applicant failed to carry his burden in proving that the mechanism of injury was extraordinary.

The Court of Appeal, having watched the biography of Isaac Newton just the night before, granted defendant’s petition and reversed the WCAB.  The reasoning was, primarily, that common sense dictates that the injury-causing-event experienced by applicant was the exact type of injury one would expect would happen in applicant’s line of work.  Had applicant been attacked by a bear, the “extraordinary” element would have been much easier to prove.

So, the defense is now back to bearing the burden of proving common sense – what kind of injury can we expect from the following job duties…