It is time to revisit and re-evaluate the value of this statutory condition (L/C 3208.1), which is rapidly becoming yet another undue burden on both employers as well as the workers' compensation system. Cumulative Trauma claims are currently being used, and in many instances abused, by disgruntled employees who are no longer on the payroll. By filing Post-Termination Cumulative Trauma claims, employees are circumventing the legitimate needs of businesses to make personnel decisions based on the employer's current financial situation and needs.
One need only look at the increase in Cumulative Trauma claims that are being filed after an employee has been laid off. While there has been no specific injury that they can point to, many are now claiming that “work” has worn them out and that they are therefore entitled to even more money than that which was bargained for as a part of their employment agreement.
I would not argue that there are no real and viable events that can lead to a compensable situation. Asbestosis would be the best example of an occupational disease that was unknown to either management or their employees for many years. Litigation over asbestosis has been ongoing since then, and I believe that the compensation awarded to injured workers in such cases is justified.
However, when an employee who is hired to do a job that produces no discernible injuries and who has been laid off for legitimate, non-discriminatory reasons is able to work around the system by claiming a cumulative injury, it is time to reassess the value of that part of the Labor Code. We must decide if both parties to this equation are being properly served. Or, is this an abuse of the system that has been allowed to fester too long?
As a starting point for this discussion, when someone is hired for a job whether it is for either brain or brawn, the employer is taking on the whole person as he/she finds them. When the employee arrives at the jobsite, he/she does not simply place their body in the corner to rest while some mysterious spirit does their job. Employers hire the entire package as he/she finds them and is responsible for same. I would then point out that whether or not we like it, all of us are “wearing-out” as the years pass. The question then is, “Why should an employer be responsible for the normal aging process vs. being responsible for a specific injury?” I argue that they should not.
I therefore offer three possible options for consideration. Any or all of these will allow legitimate cumulative injuries to be raised as part of the work bargain while at the same time making employees responsible for their own “wearing out.”
Take “cumulative” claims out of L/C [Section 3208.1(b)] so that it reads: “An injury may be either specific or cumulative occurring as the result of one or a series of incidents or exposure which causes disability or the need for medical treatment” and then remove cumulative trauma from L/C 5412 and place it under 5411.
This will allow employees to file a cumulative trauma claim just as they would a specific injury. This would also place the burden of proof on the employee to show, just as they must now with a specific injury. In other words, what extraordinary events of employment occurred thereby showing how this cumulative trauma is more than just part of the normal “wearing out/aging” process we all face every day.
- Change the definition of a Cumulative Trauma injury to more closely mirror that of psych/stress claims (L/C 3208.3). In other words, let the employee show how the preponderance of actual work, absent the normal aging process, had caused a “disability” which should be covered.
- Since the employer is hiring the entire package, we should set up a “depletion” allowance funded by the employee. There should be a percentage taken from each dollar earned which is placed in a fund similar to a 401K. It will belong to the employee and will be portable so that it follows him/her throughout their working career. At the time they become eligible for Social Security, they would have access to this additional fund of dollars. This would result in taking the burden of the normal aging process off the backs of employers.
Regardless of which of these or any others the legislature feels would be the best solution to this growing problem, the real point is that this is currently just another further drain on employers and therefore the California economy and needs to be addressed.
In the past, I have discussed the need to make employees who are injured on the job aware that they can retain their own doctors at their own expense.
We are now seeing the injured employee's attorney trying to gain medical control by claiming that pursuant to the Labor Code, you did not offer immediate medical treatment or, if it was provided it was not in a timely manner. As such, they are claiming that you (really your carrier) have waived your right to medical control under your Medical Provider Network. As such, applicant's attorneys are now trying to move their client to their medical provider(s) to see just how many new body parts they can add to the claim. So, when you are the first to receive notice of a claim, here is what we recommend you do.
Immediately schedule an appointment for the injured employee with your clinic and provide the employee with a written notice telling them when and where to go. That way, we will have foiled any attempt by the applicant attorney to grab medical control because of our alleged failure to provide treatment.
To help you facilitate the process, I have added language regarding this medical appointment to the “Acknowledgment of a Claim” letter I recommend you use (see below). The goal is to ensure that your injured employee understands that they must go to our doctors for treatment, as well as at the same time telling them that they are free to obtain medical treatment outside of your Medical Provider Network but that it will be at their own expense.
We have already seen this approach work keeping the injured employee treating within our Medical Provider Network. Injured employees are showing your letter to them to their attorney and are asking if they really have to go to our doctor(s). They are also asking if their attorney is going to pay for any treatment by the attorney's directed non-Medical Provider Network doctor. The answer is almost always “No,” and we find ourselves retaining medical control with a minimum of effort on our part, which we all know is critical to the timely closure of any claim.
You will note below the revised language I recommend you use. You will also note that it should be on company letterhead and given as soon as you first learn of the claim. A copy should also be sent to the examiner for this claim. This way, no time will be lost and there will be no argument over whether or not you have waived any of your rights to retain and maintain medical control.
I have put the medical appointment language in italics so that you understand that it should only be used when you are the first served with notice of a claim. Otherwise, simply leave this out and only use the language about their ability to obtain their own doctor at their own expense.
(On Company Letterhead)
Re: Recent work related injury – (Date of Injury)
Dear (Employee's first name if possible or Mr/Mrs …)
We were sorry to learn of your recent on the job injury. We want to take this opportunity to assure you that our workers' compensation insurance company has been notified. They will be in touch with you to discuss your injury and to make sure that you receive all the benefits necessary to help you with a speedy recovery.
We want to be sure that you know your rights under California law (Labor Code 4605) which says:
“You have the right to provide, at your own expense, a consulting physician or attending physician(s).”
We also understand that you probably feel the need to be seen by a doctor as soon as possible. We want you to know that medical treatment is immediately available at (insert your clinic's name here). They are located at (address and phone number).
An appointment has been made for you at (call the clinic and get a specific time for the injured worker to be seen). If this time is not convenient for you, call the clinic and reschedule at your convenience. You will be receiving further information directly from our workers' compensation carrier regarding your claim.
Please do not hesitate to contact (fill in the name of the person) if you have any questions about your injury or benefits.
Again, we wish you a speedy recovery.
Cc – Your insurance carrier
Imagine, if you will, twin boys born on some sunny day not too long ago. Neither one of the boys, nor their parents, nor even the delivering doctors knew that both boys were born with a heart condition. This congenital heart anomaly, a patent foramen ovale, left a small hole open in the walls of each brother’s heart, exposing them to higher risks of stroke.
These twin brothers, let’s call them Keven and Kenny, seemed to be joined at the hip. They enjoyed all the same activities, all the same food, went to the same school, and, when they decided it was time to purchase homes of their own, bought two adjacent houses. Being as close as they were, they tore down the fence between their properties and right in the middle built a small gazebo where they could enjoy breakfast with their families every weekend morning.
In choosing a profession, Keven wanted a job that would keep him physically fit while allowing him to serve the community and even save the lives of his fellow citizens. So he became a firefighter. The job kept him physically fit and allowed him to maintain a clean bill of health … except for that congenital heart anomaly, which no one knew about.
Kenny, on the other hand, decided to pursue the absolute highest calling — the profession which the bravest and noblest aspire to. He didn’t want to become a physician, or an engineer, or even a scientist. He decided to become a workers’ compensation defense attorney (not unlike your humble author).
Still, the two twin brothers were in every other respect exactly alike, and spent every Sunday morning having breakfast together in that shared gazebo, along with their wives and children.
Then, tragedy struck! One morning, as Kenny and Keven sat next to each other, enjoying the morning air, each with a newspaper in the left hand and a piece of toast in the right, they suddenly sat straight up, looked into each other’s eyes, and both collapsed to the ground with strokes.
Their families rushed them to seek medical treatment and, fortunately, each of the two brothers recovered. Before long, they were sitting next to each other in their shared gazebo, when Kenny had an idea. Why not file workers’ compensation claims for the strokes — surely, the stress of being a firefighter caused Keven’s stroke. And, if being a firefighter is stressful enough to cause a stroke, then being a workers’ compensation defense attorney is even more so!
As the cases progressed, each of the two brothers agreed to use an Agreed Medical Evaluator, and each AME came to the same conclusion: the AMEs both found that, in their respective cases, the “stroke … occurred in an individual whose only major risk factor for stroke in terms of this industrial analysis appears to be his congenital heart defect … all of his conditions apportion 100% to non-industrial causation.”
Kenny was crushed — his case was effectively at an end as the workers’ compensation Judge ordered him to take nothing. After all, the Agreed Medical Evaluator had found that there was only one cause for his stroke — a non-industrial condition acquired at birth. How could any legal system, short of denying a defendant-employer due process, require workers’ compensation payment for something so patently and obviously unrelated to any work causes? Keven’s case, on the other hand, was just warming up.
Keven’s attorney argued that, under Labor Code section 3212, “any heart trouble that develops or manifests itself during a period while [the firefighter] is in the service of the office, staff, department, or unit … shall be presumed to arise out of and in the course of the employment.”
Now, isn’t that presumption rebutted? After all, as in both the case of Kenny and Keven, the Agreed Medical Evaluators have found that the sole reason for both strokes was the congenital heart condition — exactly 0% of the causation had anything to do with work as a firefighter or as a workers’ compensation defense attorney.
Well, as Kenny feels once again misused and ignored by the system he so gallantly serves, Keven has another line of defense: “The … heart trouble … so developing or manifesting itself … shall in no case be attributed to any disease existing prior to that development or manifestation.”
Keven’s attorney would have to prove that Keven is a firefighter — something he could establish without much difficulty (showing up at the Board with a fire axe is not recommended, even if you believe you’ve got “an axe to grind”). Then, he would have to prove that Keven’s injury could be considered “heart trouble.” This should be no problem, considering the fact that case-law has established that there are very few non-orthopedic injuries that might be considered not heart trouble (Muznik v. Workers’ Comp. Appeals Bd. (1975)).
But what about that pesky requirement of “in the service of the office …” as required by Labor Code Section 3212? If the firefighter is sitting in his and his brother’s gazebo, drinking coffee on a beautiful Sunday morning and indulging in that antique of an information-delivery device that people so often read, is he really in the service of the fire department?
For example, the Court of Appeal in Geoghegan v. Retirement Board (1990) upheld a retirement board’s denial of benefits for a firefighter who sustained a heart attack while skiing.
Now, before the applicants’ attorneys out there start mumbling something about a ski-lodge burning and a San Francisco firefighter being called in to ski down the slopes and shovel ice onto the flames, your humble author assures you, this was a vacation. The treating physician found that the heart attack was caused by the altitude and Mr. Geoghegan had recently passed the fire department’s physical exams with
skiing flying colors.
The Board of Retirement had rejected Geoghegan’s application for retirement benefits, and he appealed. There, the Court of Appeal rejected Geoghegan’s argument that Labor Code section 3212 applied and that he should be, at that very moment, counting his money instead of appealing his case, because the trial court had found that “the conclusion is inescapable that plaintiff’s disability was due to the myocardial infarction caused by the cold and altitude encountered while skiing.”
Previous decisions, as cited by the Geoghegan Court, included Turner v. Workmen’s Comp. App. Bd. (1968) and Bussa v. Workmen’s Comp. App. Bd. (1968). In Turner, a police officer’s heart attack sustained while on duty after a day off spent abalone fishing was found non-industrial, and the presumption of Labor Code Section 3212.5 was rebutted. In Bussa, a firefighter’s exertions on a second job were used to rebut the presumption of industrial causation for his heart attack.
Well, Keven’s attorney could easily fire back that those three cases can be distinguished because they don’t touch on the anti-attribution clause (“[t]he … heart trouble … so developing or manifesting itself … shall in no case be attributed to any disease existing prior to that development or manifestation.”) And, as the Agreed Medical Evaluator in Keven’s case had found that 100% of the disability was caused by a congenital heart defect, that leaves (let me get my calculator here …) 0% available for causes not “attributed to any disease existing prior to that development or manifestation.”
Geoghegan was already a firefighter when he sustained his heart attack; Turner was already a police officer when he sustained his heart attack; and Bussa was already a firefighter when he had his heart attack. On the other hand, each of these cases showed an injury attributed to something other than a condition in existence prior to the start of the applicant’s career with the fire or police department.
Keven, on the other hand, was not exerting himself at all — he was having coffee with his twin brother and their respective families over a relaxing Sunday breakfast.
But doesn’t something seem strange about sticking the fire department with the bill for a condition which existed at birth? After all, we’re talking about medical care and temporary disability and permanent disability and maybe even a pension. That’s not to mention the litigation costs. The city in which Keven is a firefighter could be deprived of a firetruck or several firefighters’ salaries if it is liable for Keven’s stroke.
Your humble author directs you to the recent case of Kevin Kennedy v. City of Oakland. Mr. Kennedy, a firefighter, had sustained a stroke while he was off work and filed a workers’ compensation claim against the City of Oakland, reasonably arguing that the stroke was “heart trouble” as contemplated by Labor Code section 3212. After an Agreed Medical Evaluator found that Mr. Kennedy’s stroke was entirely caused by a congenital heart anomaly, and had nothing to do at all with any work-related activities or trauma, the workers’ compensation judge found that the City of Oakland was not liable for the injury.
Mr. Kennedy’s attorney made a fairly logical argument: Labor Code Section 3212 prohibits the attribution of heart trouble to “any disease existing prior to that development or manifestation” of heart trouble. Additionally, the same Labor Code section requires heart trouble in firefighters to be presumed industrial, although this presumption may be rebutted by other evidence. Here, there is no evidence available with which to rebut this presumption, because the AME found that 100% of the causation should be attributed to the congenital heart condition.
The workers’ compensation Judge, however, found that Mr. Kennedy could not recover — based on the opinions of the AME, the stroke had absolutely nothing to do with Mr. Kennedy’s employment.
Applicant petitioned for reconsideration, and the Workers’ Compensation Appeals Board granted reconsideration, reasoning that Mr. Kennedy’s patent foramen ovule was a condition existing prior to the development or manifestation of the stroke, and that Labor Code Section 3212 necessitated a finding of compensability. The Court of Appeal denied defendant’s petition for a writ of review.
In issuing its opinion, the Workers’ Compensation Appeals Board was consistent, echoing a similar decision in the matter of Karges v. Siskiyou County Sheriff, finding a deputy sheriff’s congenital heart condition compensable under Labor Code section 3212.5.
So … what’s to be done? Common sense and a basic inclination for fairness militate against this outcome. We’re not talking about a weak heart being aggravated by work conditions, but rather a firefighter at peak physical fitness succumbing to a condition with which he was born and an illness in which his work played no part. It’s entirely possible that if Mr. Kennedy had spent his life behind a desk, much like his imaginary twin brother Kenny, his heart would have been strained by office junk food and a sedentary lifestyle, much like your humble author’s.
As promised, here are a few crackpot arguments to be used only by the most desperate in such cases. Your humble author doesn’t know if these will work, but if they are the only alternative to writing a big check, perhaps they are worth exploring.
- As with the Karges decision, the argument should be raised that Labor Code Section 4663 is the more recent law, and therefore reflects the more current legislative intent. In litigated matters, judicial authority should be used to further this Legislative intent and not find impairment caused entirely by non-industrial factors to be compensable.
In the writ denied case of Michael Yubeta v. Workers’ Compensation Appeals Board, a corrections officer’s claim for heart disease was ruled non-compensable when the Agreed Medical Evaluator found cardiovascular disease manifested prior to the start of his tenure with the Department of Corrections. In the Kennedy, matter, the defense might argue that the patent foramen ovule is the “heart trouble” contemplated by section 3212, and it manifested itself at birth, before the term of service with the fire department. Mr. Kennedy’s stroke, being directly and exclusively caused by this manifestation, should not be presumed compensable.
After all, the poor guy had a hole in his heart — not in the sense that he couldn’t love or open up to other people, but the wall to his heart had an actual hole. Studies had shown that this practically guaranteed that he would sustain a stroke at some point in his life. (Understandably, this one is a stretch).
Webster’s dictionary defines “attribute” as “to regard as resulting from a specified cause.” However, as the Labor Code does not use the words “apportionment” and “attributed” interchangeably, we can only suppose that they mean two different things. So, while section 3212 prohibits us from attributing heart trouble for purposes of AOE/COE (Arising Out Of Employment/In The Course Of Employment), perhaps we are still permitted to “apportion” the heart trouble to non-industrial causes. If such is the case, the Kennedy matter should have found the stroke compensable, and yet apportioned 100% to non-industrial causes.
In other words, Mr. Kennedy should get the medical treatment but not the permanent disability indemnity.
In an attempt to simplify the ever-confusing Workers’ Compensation world in the great State of California, our legislative branch drafted SB 863 in 2012. With the stroke of his pen, Governor Brown enacted sweeping legislation, with effective and varying start dates for various provisions of the new law. However, with varying start dates comes confusion regarding various provisions. A spinal surgery request is one of the areas which appears to have a problem with the implementation date of July 1, 2013.
Effective January 1, 2013, provisions under Labor Code § 4062(b) pertaining to the spinal surgery second opinion process have been eliminated from the Labor Code. Overall, this is a positive result for the Defendant from SB 863. The new independent medical review (IMR) process kicks in on July 1, 2013, for dates of injury prior to January 1, 2013. However, a new question has surfaced as a result of this substantial change. How do we address spinal surgery requests for dates of injury prior to January 1, 2013?
The new regulations and the Labor Code conflict in their guidance. Labor Code § 4062 (b) reads: “For injuries on or after 1/1/2013 and for UR decisions communicated on or after 7/1/2013, regardless of date of injury, all employee objections to utilization review disputes under Lab Code § 4610 are resolved only IMR pursuant to 4610.5 and not through the QME process.” Simple enough. Yet with the provisions of Labor Code § 4610.5 regarding the IMR process not starting until July 1, 2013, we have a sizeable gap of six months where the parties are seemingly unable to participate in a second opinion process as well as the independent medical review process.
Causing even more confusion is the second half of Labor Code § 4062(b) which reads: “For injuries on or after 1/1/2013 and for objections to diagnosis of treatment recommendations within the MPN, regardless of the date of injury, all employee objections to diagnosis or treatment recommendations within the MPN are also resolved only through independent medical review pursuant to § 4610.5.”
Curiously, this seems to imply that the independent medical review process is the method which should be used, since a request for spinal surgery is clearly a request for care. Further, the process is to be implemented “regardless of the date of injury.” That being said, we must note that the objections must come from care within the medical provider network (if applicable). Further, it appears that this section refers only to “employee” (not employer) objections.
So what is the correct answer? In my research, I consulted with numerous publications. I also consulted with fellow colleagues. All presented varying answers. Ultimately, I found the answer in Labor Code § 4610(g)(3) which provides:
“(3) (A) Decisions to approve, modify, delay, or deny requests by physicians for authorization prior to, or concurrent with, the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision. Decisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director. If the request is not approved in full, disputes shall be resolved in accordance with Section 4610.5, if applicable, or otherwise in accordance with Section 4062.”
As Labor Code § 4610.5 is not applicable until July 1, 2013, Labor Code § 4062 will apply and the medical-legal process takes over. Which means the Defendant would adhere to the requirements under the guidelines established under the utilization review process when we are faced with a spinal surgery request.
Upon receipt of the request, they must proceed with a timely and proper review and furthermore must properly convey the denial for care as indicated above. It is important to remember that the Defendant must notify the “employee” by a copy to the employee and their attorney. In their notice to the physician, the correct, identified physician must be served as indicated above. Finally, it is my recommendation that with any utilization review determination, a proof of service should accompany the final, written decision. Although this step may be seen as a small one and potentially burdensome, a proof of service signed under penalty of perjury usually eliminates a claim of late or improper service, and can be a very valuable tool at the time of a hearing.
Assuming the utilization review process was completed properly and a denial issued, the parties would then proceed with a medical-legal evaluation under Labor Code § 4062 to resolve the dispute.
Come July 1, 2013, many areas of Workers’ Compensation that have these sorts of “gap” problems will simply go away. And the parties will fully participate in the independent medical review process on all claims. Until that time, however, we must continue to infer what the legislature intended, and litigate items such as this, if necessary.
*Special thanks to Jake Jacobsmeyer.
January 1 is going to be a day like none other in recent memory for the California workers’ compensation system. Most of the provisions of Senate Bill 863 (De León) will be operative. A flurry of regulatory initiatives near the end of this year will allow implementation of many of these provisions. There will be considerable confusion and costs associated with these new laws and procedures as they come on line. The goal and hope of virtually all in the system will be that in time the objectives of this major legislation will be met, and we will have a system that is more efficient and better aligned than what resulted from the last major reforms in 2003 and 2004.
Those in charge of implementing this legislation — largely in the Department of Industrial Relations and Division of Workers’ Compensation — have done an admirable job dealing with the intent and inherent conflicts in this new law. Their outreach through various forums — though maddening from a timing standpoint — has greatly assisted the community in its understanding of all the various nuances of SB 863 and its interaction with a voluminous body of regulations and court decisions already existing and in many cases left unaffected by this legislation. There are limits to what the Division can do, and those limits are largely set forth in the Labor Code as it will exist on January 1. Those who think that the regulatory process is a second bite at the apple to deal with issues inartfully drafted or largely ignored in the legislative process are going to be disappointed.
There is a debate as to whether SB 863 will reduce costs in 2013 and by how much. The benefit increases are hard dollar increases, while the various reforms intended to produce savings and offsets require both effective implementation and accurate analysis. They also take time. This dynamic is at the core of Commissioner Jones’ November 30th pure premium order. The Commissioner’s decision clearly showed, as did the actuarial analyses presented to him, that the reforms are mitigating the increased costs in the system from day one. It is equally clear that until there is experience under the reforms and the reforms are fully implemented, the full measure of savings cannot be completely or accurately estimated.
Prior reforms, specifically Assembly Bill 227 (Vargas) and Senate Bill 228 (Alarcon), combined system changes, such as mandatory utilization review, with well-defined elimination or reduction of benefits. These 2003 measures eliminated vocational rehabilitation and capped chiropractic treatments — changes that were easily quantifiable the moment the ink dried on then Governor Gray Davis’ signature. The next year, Senate Bill 899 (Poochigian) added reforms to medical control and permanent disability rating that quickly manifested additional considerable savings in medical and indemnity losses, but also resulted in higher loss adjustment and medical cost containment expenses. And, as we saw with the Almaraz, Guzman, and Ogilvie decisions, reforms of the permanent disability system eroded significantly once reshaped by the Courts.
SB 863 is an investment both in our injured workers and California’s businesses. It is a long-term investment. Measuring the return on that investment by new and renewal quotes for January 1, 2013 insurance policies is simply a mistake. This legislation was never intended to provide significant immediate cost savings. It is intended, however, to provide savings to more than offset the two years of benefit increases the Legislature adopted and Governor Brown signed into law once the most significant reforms are fully operational. The workers’ compensation community is served best by understanding what the new laws do — and don’t do — on January 1, and on July 1, and in 2014 and, ultimately, 2015. If we don’t do that, then this effort will just be the latest in a series of well-intentioned, but ultimately futile, efforts to return this system to its original promise. If we do, however, SB 863 might be the elusive long-term reform generations of employers and workers have wanted for so many decades.