CASE LAW UPDATE
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A PEARL OF A DECISION ISSUE BY SUPREME COURT ON PSYCHIATRIC RETIREMENTS:
LABOR CODE SECTION 3208.3 HELD NOT TO APPLY TO CALPERS PSYCHIATRIC DISABILITIES
The Supreme Court, in Pearl v. Workers' Compensation Appeals Board (2001) 3 WCAB Rptr. 10,211, a case handled by Edward Faunce, Esq. from the Law Offices of Lemaire, Faunce, Pingel & Singer, ruled that a Police Officer, who suffered a psychiatric disability, did not have to comply with Labor Code Section 3208.3 to prove up his entitlement to a disability retirement. Labor Code Section 3208.3 requires that a psychiatric workers' compensation injury be compensable that the employee demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. In other words, 50 percent plus of the stress must be related to work. The Supreme Court ruled that retirement law standard only applied. The retirement law standard only requires that the worker prove that the injury arose out of and in the course and scope of employment.
SIGNIFICANCE FOR INJURED WORKERS: For those seeking a disability retirement from a State, County or City employer, the psychiatric standard of injury in accordance workers' compensation law may not apply to their case. By this decision, the ruling currently applied to CALPERS but may likely follow to other retirement systems. In sum, even though your psychiatric claim of injury resulting in disability may not result in a valid workers' compensation case, it may result in a valid service connected disability retirement. For more information about Retirement cases, go to www.public-pensions.com.
READ YOUR COMPROMISE AND RELEASE! YOU MAY HAVE GIVEN UP
RIGHTS BEYOND THOSE OF WORKERS' COMP
In the case of Jefferson v. California Department of Youth Authority (2001), the Court of Appeal, Fourth District, in a published decision, held that an injured worker who signed a "GENERAL RELEASE" waived "ALL CLAIMS." In the case, the Applicant had a workers' compensation case and also a case for she had filed for a FEHA (Fair Employment) Sex Discrimination claim. She settled her workers' compensation case by Compromise and Release which included language that stated that she released and forever discharged said employer... from all claims and causes of action, whether now known or ascertained, or which may hereinafter arise or develop as a result of said injury. The attachment included the terms of the release stating that Applicant desired to avoid the hazards of litigation and defendant wished to buy its peace... The settlement was to compensate for all aspects of the injuries included herein. The Applicant agreed that the release will apply to all unknown or unanticipated injuries and damages resulting from such accident and all rights under SECTION 1542 of the CIVIL CODE of California were expressly waived.
As a result, the Trial Court in her Sex Discrimination case, granted summary judgment against the injured worker on the ground that she had given the Defendant a release within her Compromise and Release in her workers' compensation case. Thereby, she was barred from pursuing her Civil Sex Discrimination case. The Court of Appeals concluded that in the absence of evidence to the contrary, the language in the workers' compensation release stating that all claims were waived means just that, unless the release specifies otherwise.
SIGNIFICANCE FOR INJURED WORKERS: Read your Compromise and Release carefully! Do not allow for any release or waiver that is beyond your workers' compensation claim. You may have other legal actions that you may be eligible to pursue, i.e. a discrimination claim or a wage claim, and you will have given up your right to do so. This language should always be stricken unless the purpose of the settlement is in fact to resolve all those other matters. If not, do not give up on your rights!!!
APPEALS BOARD LAYS OUT ANALYSIS FOR PSYCHIATRIC CLAIMS
In an En Banc Panel Decision by the Workers' Compensation Appeals Board, the Board laid out the analysis taken in handling Psychiatric claims of disability. In Rick Rolda v. Pitney Bowes, (2001) 3 WCAB Rptr 10,096, the WCAB indicated that the following analysis should take place. First, a determination should be made whether the actual events of employment are involved. This is a factual/legal issue for the WCJ to determine and not a medical issue. Second, whether such actual events were the predominant cause of the psychiatric injury, a determination which requires medical evidence. Third, if so, whether any of the actual events of employment were personnel actions that were lawful, non-discriminatory and in good faith, a legal/factual issue, and (4) if so, whether the lawful, nondiscriminatory, good faith personnel actions were a substantial cause (at least 35 to 40 percent) of the psychiatric injury, a determination which requires medical evidence.
SIGNIFICANCE FOR INJURED WORKERS: Before filing a Workers' Compensation Psychiatric claim, it is very important for the worker to analyze these factors to see if this analysis will bar them from recovery. A careful reading of Labor Code Section 3208.3(h) is required. If there has been a significant amount of legitimate discipline, a claim may be barred on this analysis. Further, if the individual is having a turbulent personal life which creates the predominant stress in the individual's life which has caused the injury, then that should also be considered when deciding whether or not to file such a claim. Consultation with a Lawyer is strongly recommended if there are any doubts.
OUT OF STATE VOCATIONAL REHABILITATION PROVISION HELD TO BE CONSTITUTIONAL
In the case of Niedle v. W.C.A.B., (2001) 3 WCAB Rptr 10,083, the Second District Court of Appeal held that the provision of Labor Code Section 4644 which required an out-of-state vocational rehabilitation plan to be more cost-effective that an in-state plan was found to be constitutional and not in violation of the Equal Protection clause of the United States Constitution on the grounds that it impedes the right to travel.
SIGNIFICANT FOR INJURED WORKERS: Although it is my understanding that this case has been appealed to the California Supreme Court, the importance of this case is that workers who are in the process of obtaining vocational rehabilitation benefits should read Labor Code Section 4644 very carefully. They should look toward developing that cost effective plan if possible and not get too ambitious concerning what they desire to do. They should always compare things to how much such a program may cost in California.
NORMAL BODY MOVEMENTS AN INDUSTRIAL INJURY?
In the case of Pomona Valley Hospital v. W.C.A.B. (2000) 2 WCAB Rprtr 10,289, a worker fractured her femur by twisting to the left to reach a ledge with her right hand when she sat at her desk with her legs crossed. The Trial Court found that the injury was industrial. It should be noted that Applicant was on hormone replacement to prevent osteoporosis. The Judge found that although the worker suffered from a preexisting condition which might have rendered the worker more susceptible to injury than a stronger worker does not make the injury not compensable. The Judge stated that compensation is not be denied merely because the worker's condition was such as to cause them to suffer a disability from an injury which ordinarily would have caused little or no inconvenience. Petition for Writ of Review was denied.
SIGNIFICANCE FOR INJURED WORKERS: Even if a worker has a pre-existing condition, workers' compensation benefits may be available. As it is has been stated many times, an employer takes an employee as he or she finds them at the time of the injury. Therefore, liability may exist even if there is some pre-existing medical problem or disability.
MEDICAL AWARDS PROTECTED
The California Supreme Court in the case of Ronnie Barnes v. W.C.A.B. ruled that the Workers’ Compensation Appeals Board does not have jurisdiction over an employer’s petition to terminate future liability for medical care if the petition is filed more than 5 years from the date of injury . The Court ruled that the Workers’ Compensation Appeals Board retains continuing jurisdiction to adjudicate whether an employer’s claim of particular medical treatment is unjustified or not attributable to the original injury.
In the case of Barnes, the Applicant had received a “may need” medical care award.
SIGNIFICANCE FOR INJURED WORKERS: If you receive a medical award, either as a “may be” or “is” needed, the claims administrator cannot seek to terminate your right for medical care by filing a Petition more than 5 years after the date of injury. Therefore, you should feel free to seek necessary treatment whenever necessary. The claims administrators, in these instances, however, can contest whether the particular treatment is justified or whether it relates to the original injury. Barnes, in essence, dispelled the myth that a “may need” medical care award is not as good as having a “is need” award for medical care.
HELPFUL TIP: It is recommended that you keep a copy of your award in a safe place, i.e. Safety Deposit Box. Also, you should make sure that your treating physician also has a copy of it.
PSYCHIATRIC INJURIES ARISING FROM PHYSICAL INJURIES: GOOD FAITH PERSONNEL ACTION DEFENSE DOES NOT APPLY
In the case of Gloria Herrera v. County of Monterey, the Workers’ Compensation Appeals Board found that Labor Code Section 3208.3 (which allows for the defense of Good Faith Personnel Action) does not apply to psychiatric injuries which were a result of a physical industrial injury. In Herrera, the Applicant’s physical injury was bilateral wrists. Petition for Writ of Review was denied by the Court of Appeal. See 2 WCAB Rprt 10,257.
SIGNIFICANCE FOR INJURED WORKERS: Injured workers who have sustained psychiatric trauma as a result of a physical injury should not be in fear that their psychiatric injuries will be denied based upon Labor Code Section 3208.3, which provides for the defense of Good Faith Personnel Action. If such a claim is denied, the claims administrator must be educated as to the current state of the law. Alternatively, the matter should be taken to court for adjudication.