Tag Archives: wcab

MOU Is Not a Noise Made By a Cow

Almost all of my mediations end with agreement to a Compromise and Release. Parties often bring a partially completed Compromise & Release form, DWC-CA form 10214(c), to the mediation. That’s great. But when considerations prevent execution of a final agreement at the mediation, a Memorandum of Understanding, known as an M.O.U., can be invaluable.

After working hard to come to terms, you don’t want to let the passage of time blur people’s memories or minimize their commitment. Participants should not leave the mediation without a record of their agreements.

A Memorandum of Understanding memorializes the skeleton terms agreed upon at the mediation. Parties sign off at the mediation. The M.O.U. might specify a timeline or conditions.

Some settlements are complicated, requiring many addenda. Unanticipated issues may have arisen and been resolved at the mediation. Parties need to return to their offices to draft the final settlement document. The M.O.U. should specify the basic terms as well as deadlines for completion of the initial settlement document, exchange of revisions, and submission to the WCAB.

See also: Work Comp: Mediation or an ‘Informal’?  

Some agreements are conditional, usually upon CMS approval of a Medicare Set-Aside allocation. Attorneys may address this issue by doing everything but the walk-through, including signatures, pending approval. This leaves a potentially dangerous loophole when unforeseen events occur during the waiting period.

Another way to document a conditional agreement is through an M.O.U. Unlike the agreement, which sits in a file drawer, an M.O.U. can specifically address the condition, including what will happen if the condition cannot be fulfilled. For example, if CMS comes back with a higher amount, and the parties do not assent to that amount within a specified time, they can agree to return to mediation.

Sanity Prevails on Award of TTD

The 4th District of the Court of Appeals has reversed a puzzling W.C.A.B. decision that had awarded TTD benefits beyond five years from the date of injury, ignoring the plain language of Labor Code 4656(c)(2). In County of San Diego v W.C.A.B. (Pike),<http://www.courts.ca.gov/opinions/documents/D072648.DOCX> the appellate court had little difficulty in reading the rather straightforward statutory language to firmly reverse the WCJ and W.C.A.B. decisions awarding TTD beyond the five-year jurisdictional limit set by statute.

The applicant, Kyle Pike, sustained injury to his right shoulder in July 2010 while employed as a deputy sheriff for the County of San Diego. He was awarded a 12% PD benefit in May 2011. On May 26, 2015, within the five-year jurisdictional time to reopen his case, he filed a Petition for New and Further Disability seeking TTD and Labor Code 4850 benefits. He received his 4850/TTD benefits through July 31, 2015, at which time benefits were terminated.

At trial, the WCJ awarded benefits on a continuing basis, determining that while Labor Code 4656 was clear regarding benefits payable within the five-year jurisdictional time frame in the statute, it was silent as to what benefits could be provided after five years from the date of injury. On reconsideration, the W.C.A.B., in a split decision, affirmed the WCJ’s award.

The Appellate Court had little difficulty in seeing through the WCJ’s and W.C.A.B.’s construct:

“       This interpretation of section 4656, subdivision (c)(2) is not tenable.  As discussed above, section 4656, subdivision (c)(2) clearly and unambiguously provides that temporary disability benefits “shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.” (§ 4656, subd. (c)(2).) Thus, contrary to the board’s decision, the relevant statutory language does provide that all periods of temporary disability for which payments are made must occur within five years of date of the injury.”

The court also pointed out that if the WCJ/W.C.A.B. analysis was correct, even the 104-week limitation would not exist after the five-year limitation, in effect, eliminating any limitation on TTD beyond five years while providing limitations within five years, hardly a logical result.

“…Such inconsistent reasoning further demonstrates the fallacy of the WCJ’s interpretation.”

See also: Why WC Needs an Outcomes Strategy  

The appellate court also pointed out that all of the authorities cited by the applicant attorney, amicus for applicant and the W.C.A.B. were interpretations of Labor Code 4656 prior to the amendments limiting TTD to the period within five years from the date of injury.  The court further noted that in the one decision it found where similar language was included in the statute, the appellate court had limited the receipt of TTD to within the five-year statutory time frame.

The court reversed the W.C.A.B. decision remanding the case back to the W.C.A.B. to grant the Petition for Reconsideration of the Petitioner, County of San Diego.

Comments and Conclusions:

The W.C.A.B.’s decision in this case is at best puzzling, at worst a flagrant attempt to avoid the legislature’s clear intent. It is difficult to conceive of how this statute could be tortured into an interpretation that allowed TTD to be paid beyond the statutory limitation. The analysis by the WCJ, adopted by the majority of the W.C.A.B., was patently inconsistent and required a tortured reading of the statute to reach the final result.

If the WCJ/W.C.A.B. analysis had been upheld, all an injured worker would have to do to obtain additional TTD is file a petition within five years from the date of injury and then wait till after the five-year date to claim additional TTD. Hardly a result the legislature intended and one that even the W.C.A.B. would have a hard time justifying with a straight face.

A copy of the decision can be found here.

Work Comp: Mediation or an ‘Informal’?

There are a lot of reasons why negotiating a workers’ comp settlement at a mediation is better than at the board, such as control over scheduling and lack of time constraints. But how does that compare with an informal? The presence of the mediator makes all the difference. Here are three examples:

Stop the Posturing

When opposing counsel sit together they keep their cards close to the vest. They magnify the strengths of their own case while denigrating the opposing viewpoint. Once I separate the parties into separate rooms (caucuses), the motivation to aggrandize diminishes. Attorneys and their clients can reasonably discuss the good and bad sides of the issues with the mediator without giving up their negotiation position. Then it’s my job to convey that position so that another reasoned discussion happens in the other room.

See also: Work Comp Mediation in a #MeToo World  

The Neutral Sounding Board

As a professional neutral, I do not have a stake in the outcome. I want to help the parties reach a settlement, which is the optimal result for all. I can provide untainted feedback and sometimes point out overlooked data. Some clients refuse to listen to their lawyer’s case assessment, and some lawyers have learned that their continued employment mitigates against contradicting their client’s overconfidence. As mediator, I can deliver an unwelcome message about the prospect of success, opening the door to a more frank discussion between attorney and client.

Stakeholders Have Active Roles

Unlike at the WCAB or an informal, the stakeholders are encouraged to take an active part in mediation. In caucus, clients and their attorneys can have frank discussions with the mediator—and each other. When claims adjusters and risk managers attend mediation, they maximize their understanding of the dynamics of the negotiation. Injured workers can receive settlement offers in real time.

Some applicant attorneys keep their clients away from the negotiation in an informal meeting. The injured worker may be hidden in a back office or on telephone stand-by. There may be important reasons to prevent interaction between the defense attorney and the injured worker, but this approach prevents the injured worker from buying in to the negotiation. Sometimes, the result can be disastrous when the injured worker later repudiates that carefully crafted compromise and release.

<See also: 25 Axioms Of Medical Care In The Workers Compensation System  

In contrast, once the parties are separated into their caucus rooms, the stakeholders, their attorney and the mediator can have a confidential, free-flowing discussion without the presence of opposing counsel. It may be the only time the injured worker gets to tell the story to a neutral.

The neutral intermediary is missing in an informal. My job is to steer the proceedings, frame communications to facilitate the negotiation and help parties decide their course.

Blockbuster Opinion on Apportionment

The Court of Appeals in the 3rd District has issued a blockbuster opinion on apportionment in City of Jackson v W.C.A.B. (Rice) regarding the requirements for substantial medical evidence in worker’ compensation cases. In reversing the W.C.A.B., the court laid out its analysis of why a QME’s apportionment to genetic factors was well supported and legally sufficient.

The applicant in this case was a 29-year-old, police officer who developed cervical spine pain, resulting in the need for surgery. He was evaluated by QME Sloan Blair MD on multiple occasions. Dr. Blair apportioned applicant’s disability to multiple factors, including 17% each to his employment with the city, to prior employment and to personal activities. The remaining 49% was apportioned to his personal history, including “genetic issues.” In response to a request for supplemental report from the applicant attorney, Dr. Blair further clarified the basis for her opinion:

“…“to a reasonable degree of medical probability that genetics has played a role in Mr. Rice’s injury,” despite the fact that there is no way to test for genetic factors. Citing the referenced medical studies, Dr. Blair stated that one of them said “heritability was . . . 73 percent in the cervical spine. . . . [S]moking, age, and work are only a small percentage of disc disease and most of it is familial.” Another source cited the role of heritability in disc degeneration as 75 percent, and the other stated it was 73 percent. Dr. Blair cited a fourth article that claimed, “ ‘[t]win studies demonstrate that degeneration in adults may be explained up to 75 percent by genes alone.’ ” The same study found environmental factors to contribute little or not at all. Dr. Blair stated that while these studies supported an apportionment of 75 percent to personal history, she decided to err on the side of the patient in case there was some unknown “inherent weakness” in the study, and decided that 49 percent was the “lowest level that could reasonably be stated…”

The WCJ accepted Dr. Blair’s apportionment to genetic factors but rejected the other apportionment awarding PD based on 51% industrial causation. On reconsideration, the W.C.A.B. reversed, asserting Dr. Blair’s apportionment to genetic factors resulted in an allocation of disability to impermissible immutable factors and not to “specific identifiable factors” and was therefore not substantial evidence.

See also: 3rd District Upholds Validity of IMR  

The 3rd District took issue with the W.C.A.B.’s entire analysis of this apportionment issue. Noting the specific intent of SB 899 to allow apportionment to “other factors,” the court went through multiple W.C.A.B. and appellate court decisions on apportionment and could find little to distinguish apportionment on the basis of degenerative joint disease, asymptomatic prior conditions etc. The court specifically rejected the W.C.A.B.’s reference to “impermissible immutable factors,”  commenting as follows:

“…Precluding apportionment based on “impermissible immutable factors” would preclude apportionment based on the very factors that the legislation now permits, i.e., apportionment based on pathology and asymptomatic prior conditions for which the worker has an inherited predisposition. 

The Court pointed to several instances where medical evidence relied on apportionment to genetic dispositions to develop medical conditions, citing the Kos v W.C.A.B., Escobedo and Acme Steel cases and further noting:

“…We perceive no relevant distinction between allowing apportionment based on a preexisting congenital or pathological condition and allowing apportionment based on a preexisting degenerative condition caused by heredity or genetics.”

The court also rejected the W.C.A.B.’s analysis that Dr. Blair’s reliance on the applicant’s genetic makeup resulted in apportionment to the causation of injury rather than the causation of disability. The court pointed out the cause of the injury was repetitive motion, not genetics. Rather, Dr. Blair commented that the applicant’s disability was caused by a combination of factors, including a significant contribution from his genetic makeup..

The court was also not put off by the QME’s reliance on medical literature to support her conclusion rather than on a specific history from the applicant of his genetic makeup or background. As noted by the court, the doctor’s conclusion was supported by significant, unrebutted medical literature that found degenerative disc disease was influenced significantly by genetic factors and only minimally to environmental factors such as work activity. The court points out that the research relied upon by Dr. Blair supported the conclusion that as much as 75% of all DDD was related to genetics, and the issue was not whether one could prove that the genetic factor existed; the existence of significant DDD established the genetic factor as present.

“Dr. Blair’s reports meet all of the requirements of Escobedo. Dr. Blair expressly stated that confidence in her opinion was predicated on reasonable degree of medical probability. Dr. Blair gave the reasoning behind her opinion–the published medical studies–and even named the studies and the pages relied upon. Her opinion disclosed familiarity with the concept of apportionment. Labor Code section 4663 states that apportionment is based on causation, and that “[a] physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors . . . .”  (Lab. Code, § 4663, subd. (c).)”

The case was remanded to the W.C.A.B. to issue an opinion based upon the QME’s conclusions.

Comments and Conclusions:

Assuming this decision holds up — it is certainly likely to be appealed further — it dramatically reinforces the rules on apportionment to any relevant factors that a physician can identify with reasonable medical probability.

There are some unusual circumstances in this case that may have played a role in the ultimate outcome. First, the applicant was relatively young to have significant DDD, only 29 years old. That fact probably tipped Dr. Blair off that there was something about the condition that could not be attributed to environmental factors, including work. Second, the length of employment as a peace office was not lengthy; the applicant had worked less than five years in a full-time capacity. There had not been a lot of time to attribute causation to work activity.

There is also fairly strong support in the medical literature that DDD is not really activity-related. Other than studies that suggest whole body vibration is a significant factor, there is little to suggest that bending, lifting and stooping, without significant trauma, plays any role in the development of disc disease.

The situation is much like carpal tunnel syndrome, where the medical literature overwhelming fails to demonstrate a relationship between computer usage and the disease process, and yet we still routinely get compensable reports without any real support in the medical literature. Spine pain is constantly related to even relatively benign work activities as a matter of course.

Clearly, defense attorneys need to start appearing at doctor depos armed with the literature cited by Dr. Blair and challenge physicians to provide a basis for their unapportioned or minimally apportionment spine CT claims, especially in younger individuals.

See also: Intelligent WC Medical Management  

This decision may have even broader applications in non-orthopedic cases. We have a wealth of literature about causation of various internal medicine conditions and even psychiatric conditions attributable to genetic, historical and environmental factors that now can more carefully be considered to support apportionment where previously the W.C.A.B. had been rejecting such opinions. The issue of whether there can be apportionment to genetic factors or predispositions would appear to be resolved in the affirmative in this case.

another reversal on 'going and coming'

Another Reversal on ‘Going and Coming’

California’s 2nd District Court of Appeal has reversed a Workers’ Compensation Appeals Board (WCAB) decision, which had in turn reversed a decision by a workers’ compensation judge (WCJ) on a “going and coming rule” case. In Shultz v WCAB (Joint Test Tactics and Training (JT3)), the court ultimately determined that the employee was operating his motor vehicle within the course and scope of employment. So, the going and coming rule, which defines the ordinary commute as not being part of the work day, was inapplicable.

Craig Schulz was a civilian employee working on a secure U.S. Air Force base not open to the public. On the day in question, he drove his personal vehicle to the base and passed through the secure gate using the security pass issued by his employer. Approximately one mile past the gate, he was involved in a motor vehicle accident (MVA) and sustained injuries. He claimed they were in the course and scope of employment. His employer denied the claim, saying he had not yet reached the employer’s premises. The employer also argued that the applicant had sustained injuries because of an idiopathic seizure related to his diabetes, so the injuries did not arise from his employment.

Extensive testimony was taken at trial as to the employee’s duties, his need to travel to various locations on the base during the course of the day and whether his employer expected him to use his personal vehicle. The employee testified that he commonly used his own vehicle to travel from location to location on the base. The employer presented testimony that it provided vehicles for employees to travel around the base and that it did not require the employee to use his own car. Multiple witnesses, however, confirmed that Schulz did, in fact, use is own vehicle on multiple occasions. Schulz provided compelling documentation from his own log (kept for tax purposes) of his vehicle usage. There was also general agreement that, while vehicles were typically available, on occasion they were not. Schulz’s side argued both that he had entered the employer’s “premises” when he went through the secured gate and that his vehicle was used in the course of his employment, based on custom and practice.

The WCJ ruled in Schulz’s favor, relying principally on the use of his personal vehicle on the job site. The judge did not address the premises issue raised by Schultz, nor was there any compelling evidence (at least according to the court) to support the claim of idiopathic causation. On appeal, the WCAB reversed, based on the employer’s evidence of availability of its vehicles and the policy that work could be postponed until a vehicle was available. The WCAB held that the injury was outside the course and scope of employment. The WCAB did not address the applicant’s argument that he was on the employer’s premises at the time of injury.

The appeals court did not focus on either the WCJ’s line of thought nor that of the WCAB but instead focused on the premises argument. The court noted:

“Although Schultz was assigned to a particular building on Edwards, it is undisputed that he and other employees of JT3 performed work at multiple locations at the base at various times. Edwards is a secure location, and JT3 controlled Schultz’s access to the base, which he could only enter with a security pass issued by JT3 and approved by the Air Force. Because JT3 controlled Schultz’s access to Edwards, and Schultz worked throughout the base on assignments, he was on the premises of his employer once Schultz entered Edwards, and his injury therefore occurred during the course of that employment for purposes of the workers’ compensation law. “

The court cited Smith v IAC, a California Supreme Court case, as support for the concept of an understanding of the expanded-workplace concept. The court found that the Schulz case was even “more compelling” than Smith on defining the premises of the employer as beyond the actual buildings where the work was performed. The court found that the discussion as to whether Schultz was required to provide his vehicle was irrelevant once it was determined he was on the premises:

“For purposes of the premises line rule, it does not matter whether Schultz was permitted to use his own car to perform work, as he contended, or if that was not permitted, as maintained by JT3, as the record clearly shows that Schultz was required to work throughout Edwards at times, and his work was not confined merely to Building No. 1440. Schultz was on JT3’s premises for purposes of employment when injured.”

The court summarized as follows:

“We hold that the premises line rule applies to an employee injured in a single-car traffic accident where (1) the employee was a civilian working on a secure U.S. Air Force base not generally open to the public, (2) the employee entered the base in his personal vehicle after passing a guard gate using a security pass issued by his employer with the approval of the Air Force, (3) the employee had traveled one mile inside the base when the accident occurred and (4) the undisputed evidence established although the employee worked out of a fixed location, the employer had multiple locations on the Air Force base and the employee traveled sometimes in his own vehicle, as needed, throughout the base to perform work assigned by his employer.”

Comments and Conclusions:

If we were ever under the illusion that the “going and coming” rule was an inflexible legal concept, this case should certainly dispel the notion.

It is interesting that neither the WCJ nor the WCAB seemed to focus on the ultimate legal issue relied upon by the appellate court, namely whether the employee had entered the employer’s premises once he had passed through the secured gate. Some understanding as to why that may have occurred can be found in some of the court’s discussion as to whether the applicant had raised this issue in proceedings below the appellate level. One of the arguments raised by the defense included the assertion that the applicant was raising the premises rule for the first time on appeal and therefore had forfeited the right to raise the argument. The appellate court rejected that argument, finding the applicant had included a discussion of the issue in the trial brief, thereby preserving it for consideration on appeal. However, it is certainly possible that, with all the testimony on whether and how often the applicant used his vehicle, the parties may have simply overlooked the premises issue. The court certainly found enough evidence in the testimony to make a finding on the issue, so the factual basis was available for everyone to see.

In the grand scheme of things, this case does not increase exposure very much. The number of cases where an employee enters a third party’s premises that will also be considered the employer’s premises and then continues to drive several miles will likely be very limited. The fact that the court relied upon the secured nature of the location also makes expansion of this concept somewhat questionable.