Hanna & Brophy. Workers Comp Bingo Workers Compensation & Liability Legislative and Case Law Update. Created by: pliu@hannabrophy.

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1 hannabrophy.com Bakersfield Fresno Los Angeles Oakland Orange Redding Riverside Sacramento Salinas Hanna & Brophy Workers Comp Bingo 2014 Workers Compensation & Liability Legislative and Case Law Update San Diego San Francisco Santa Rosa Stockton Keith Epstein Hanna Brophy Oakland Office Created by: Greg Stanfield Hanna Brophy Oakland Office Joseph Todoroff Hanna Brophy Sacramento Office Roberto Gonzalez Hanna Brophy Salinas Office Kelsey Fisher Hanna Brophy Santa Rosa Office Kate Holland Hanna Brophy Salinas Office Tara Fitzpatrick Hanna Brophy Sacramento Office Jessie Zaylia Hanna Brophy LA Office Matthew Barravecchia Hanna Brophy Bakersfield Office Alison Brown Hanna Brophy San Diego Office Enny Van Hanna Brophy Orange County Vanessa Spencer Hanna Brophy Oakland Office Matthew Bowden Hanna Brophy Oakland Office Peter Liu Hanna Brophy LA Office Hanna Brophy, LLP Firm (510) Scanning Center P.O. Box Oakland, California Katherine Nowak Hanna Brophy Orange County

2 Hanna & Brophy, Workers Compensation Bingo Legislative and Case Law Update (Warning: Facts will vary outcomes, seek legal advise for your specific issue or dispute) Apportionment No 100% Award When There are Successive Injuries Rated Separately - Jed is a computer installation technician who sustained an injury in July 2001 to his neck, right arm and psyche. In August 2004 he filed a cumulative claim to multiple body parts, including those involved in the 2001 specific injury. The orthopedic and psyche AMEs found that Jed was quite disabled, and issued ratings for several different body parts, and providing apportionment between the two claims. The WCJ awarded 100% PD on the cumulative claim, which she deemed indicative of Jed s significant ratings and overall inability to work in the open labor market. Does Jed get the 100% award on appeal? Answer: B - Jed does not get the 100% Award since the AMEs apportioned disability between the specific and the cumulative injury, apportionment applies and precludes a 100% award on just the cumulative injury. Under Benson each injury must stand on its own. There was no vocational evidence and that precludes the Judge from determining that Applicant could not compete in the open labor market. Southern California Edison v. WCAB (Martinez) (2013) 78 CCC 825, 41 CWCR 189 (Bingo 16) No 100% Award Even if Prior Award had no Vocational Disability - William Bud Lyght, a steelworker, sustained an industrial hearing loss injury in a plant explosion in 1994, which resulted in a 22% PD award. The hearing loss did not affect his ability to work. He returned to the same job and later filed a new cumulative hearing loss injury. The AME found that Applicant now had 100% hearing loss, but with apportionment to the 1994 explosion. The vocational expert found that Applicant was unable to find work because of his hearing loss and therefore 100% disabled. The Judge found that since the prior 22% Award did not affect earning capacity, that the finding of 100% PD due on a vocational basis was appropriate without apportionment, and issued a 100% PD Award. Does the Award stand? Answer: C - Bud does not get the 100% Award, because even thought he hearing loss on the prior award did not preclude Applicant s return to work, the later 100% hearing loss must be apportioned in part to the prior hearing loss, and thus the vocational disability cannot be placed all on the later cumulative claim. Acme Steel, et al. v. WCAB (Borman) (2013) 218 Cal. th App , 78 CCC 751. (Bingo 26) Discovery & Procedure, Attorney Fees, Bill Review Regulations Defendant Entitled to Vocational Evaluation - Marty Manager sustained a cumulative trauma to his low back through his last day of employment, January 10, /2010. Marty had been evaluated by an AME who found 30% PD, however, Applicant expressed his intention to be evaluated by DFEC expert. Can the WCJ compel Applicant to attend Defendant s own vocational rehabilitation evaluation? Answer: C - Yes, the WCJ can compel Applicant to attend Defendant s vocational evaluation. Labor Code 5708 and Rule grant the WCJ discretion to determine all issues of fact and law and issue final orders as may be necessary to the full adjudication of the case and in this instance because DFEC was still at issue the judge can compel attendance at a defense vocational evaluation. Holz v. Gottchalks. (2013) 41 CWCR 41 (Bingo 6)

3 No CA Jurisdiction for Out of State Employee Hurt in CA - Duncan is a rodeo rider employed by an Ohio based circus, in the past year Duncan performed 16 times in many different states and once in California. The frequent backflips between galloping horses took its toll and Duncan filed a CT claim in California. The circus furnished workers comp coverage under Ohio law while Duncan performed in California. Why will Duncan s claim in California be dismissed? Answer: B - in a complex decision, it was held that California workers compensation law does not apply where: (1) the employee is hired outside of California, (2) the employee s presence in California was temporary, (3) the employer furnished coverage under another state s workers comp laws while the employee was in California, (4) the other state recognizes California s extraterritorial provisions, and (5) the other state reciprocally exempts California employers and employees covered by California work comp law. Carroll v Cincinnati Bengals (2013) 78 CCC 655 (Bingo 25) Removal proper if Discovery Improperly Closed at MSC, Sanctions Issued for Reconsideration Petition - Mickey Mouse was injured in the course of his employment as an entertainer when an overweight child jumped on him. The claim resolved by Stipulations & Award, but 6 months later, Mickey filed a Petition to Reopen. Mickey filed a DOR and at the MSC, Defendant Donald Duck requested that the case go off calendar to allow for a vocational rehab evaluation. The judge denied Donald s request, closed discovery, and set the case for trial. Donald petitioned for removal and/or reconsideration. Is the Petition granted? Answer: D - Removal granted, Reconsideration denied and sanctions issued. LC 5900(a) provides for reconsideration only of a final order, decision, or award. A final order is one that determines a substantive question. Closing discovery and setting the matter for trial is procedural because nothing substantive has been determined. Sanctions are appropriate where there is no basis for seeking reconsideration, even though the Removal petition was proper. Malinowski v. HSM Electronic Protection Services, Inc. (2013) 41 CWCR 121, 2013 Cal. Wrk. Comp. P.D. LEXIS 214. (Bingo 17) Employer Witness Entitled to Attend Applicant Deposition - Kim filed an application alleging she sustained a cumulative trauma injury in the course of her employment as a reality star for a popular cable television channel. The defendant scheduled her deposition at the office of her attorney. Kim appeared at the time and place, but refused to go forward in the presence of the employer s representative. Defendant petitioned for an order that the deposition proceed in the representative s presence. Choose the best answer on how the Board should rule. Answer: B - The deposition goes forward with the employer s representative present unless Kim can prove she would be subjected to unwarranted annoyance, embarrassment or oppression with the employer s representative present at the deposition. Applicant s fear of intimidation is not a sufficient reason to exclude the employer s representative from the deposition. This is especially true because applicant s attorney would be present and could remedy any improper behavior. Yera v. Nat l Union Fire Ins. Co. of Pittsburgh (2013) 41 CWCR 122, 2013 Cal. Wrk. Comp. P.D. LEXIS 189. (Bingo 33) Neither Removal nor Reconsideration Proper when Judge Orders Spanish Speaking QME - Marie is rear ended on her way to work and her workers compensation claim is denied based on the going and coming rule. At the MSC she demands to be evaluated by a Spanish speaking neuropsychologist. The Judge agrees and orders the evaluation. Defendants filed a Petition for Reconsideration, or in the alternative a Petition to Remove. What is the correct ruling? Answer: B - Both the Petition for Reconsideration and the Petition to Remove are improper, because interlocutory orders that do not determine substantive rights are not final orders subject to reconsideration, and a party must show substantial prejudice or irreparable harm for removal to be granted. The Labor Code does not provide for language specific medical evaluators. Estrada v. Liberty Mut. Ins. Co. (2013) 41 CWCR 96, ADJ FRE , Dec. 28, (Bingo 38)

4 Hearing Representatives Can Be Sanctioned by WCAB - Gatsby is a hearing representative representing injured workers for 15 years. Because he didn t go to law school, he didn t have $200,000 of student loans looming over him like a storm cloud. Instead, all of his earnings went to buying Armani suits and throwing lavish parties. As time passed, he started cutting corners, filing claims for non-existent psych injuries, ignoring sanctions, and even admitted to not knowing the law on apportionment. Fed up with Gatsby s antics, the Board unanimously determined that this pattern of sanctionable conduct was good cause to suspend his privilege to appear in any WCAB proceeding for 90 days. Gatsby was outraged and filed petitions stating that the WCAB had no jurisdiction over him. Is Gatsby right? Answer: D D. No, under LC 4907, the WCAB has the power to remove, deny, or suspend a non-attorney hearing representative from appearing before the WCAB. LC 4907 was enacted to allow the WCAB to hold hearing representatives to the same standard as lawyers who must show good moral character, complete rigorous educational or apprenticeship requirements, and pass examinations in both general law and professional responsibility before being admitted to the bar. In re Escamilla (2013) 41 CWCR 33 (Bingo 31) AOE/COE Is Not a Proper Bill Review Objection - Dr. Longbottom was selected as panel QME to evaluate Martha Mindful for an alleged psyche injury. After three re-evaluations and a deposition, Dr. Longbottom concluded Ms. Mindful s psyche troubles were caused 100% by non-industrial factors and are therefore not compensable injuries. Which of the following are potential valid objections to Dr. Longbottom s billing? Answer: C. AOE/COE is not a valid objection because these expenses are often incurred to determine the compensability of the underlying claim. Within 60 days after receipt of the bill, payment must be issued with an Explanation of Review that defines the basis for payment denial. Beware that if your objection is for a threshold issue and the medical-legal provider objects to the denied payment within 90 days you must file a Petition for Determination of Non-IBR Medical-Legal Dispute and a DOR within 60 days of the medical-legal s objection. Cal. Lab Code 4622(c) and Cal. Reg (Bingo 27) Lien Claimant Cannot Collect if No Objection Within 90-Days After Bill Review Decision - Sasha Singer is treating with Dr. Lumbar, who requested 12 chiropractic treatments which was approved by UR. Chiropractic care was provided by Crack Clinic, a member of your MPN, and the bills were paid in part within 60 days with an Explanation of Review denying the portions of the bills that exceeded OMFS. Crack Clinic did not object, but they appeared at the first lien conference a year later demanding payment of the unpaid portions. How should the WCAB Rule? Answer: D - No further payment is owed because Crack failed to object to the payment denials within 90-days of the Explanation of Review. If the only dispute is the amount of payment and the provider does not request a second review within 90 days, the bill shall be deemed satisfied and neither the employer nor the employee shall be liable for any further payment. Cal. Lab. Code (e)(2). (Bingo 34) Injury AOE/COE, Presumptions Heart Presumption Rebutted. Officer Murtaugh has been a member of the SFPD since In the 80s he began to experience heart problems. Throughout the years he suffered multiple heart related injuries, with the reporting physicians all determining the heart injuries to be industrial based on the police officer presumption. He now seeks an industrial disability retirement (IDR). Dr. Downer reviewed the medical history and concluded that the pathology would have occurred and progressed at the same time absent the police officer employment. The retirement board denied the IDR based upon Dr. Downer s opinion. Who wins on appeal? Answer: D. Officer Murtaugh does not get the IDR, because prior reports do not have to be

5 followed, and Dr. Downer s report rebutted the presumption by providing a thorough analysis of the medical history showing the pathology and heart injury would have progressed the same even without the police officer employment. Kirk v. Retirement Board of the city and County of Sanc Francisco, (2013) 2013 Cal. App. Unpub. LEXIS 2378; 78 Cal. Comp. Cases 585. Permanent Disability 2005 PDRS Inappropriate for Cumulative injury: Thomas Brady played quarterback for the New England Patriots from 1988 to During his time in New England he suffered injuries to both knees. New England traded him to the San Francisco 49ers where he played for nd two years. Tom injured his left knee again in 1992 and had his 2 knee surgery. An MRI from 1992 also showed evidence of objective disability. Tom filed an Application in 2012 which alleged injury to his left knee of CT to Should the 1997 or 2005 rating schedule apply. Answer: A - The 1997 PDRS applies. If there is a medical report showing either objective or subjective factors of disability prior to 1/1/2005, the 1997 PDRS schedule is appropriate for the award of PD for a CT. In this instance the 2005 schedule applied because there was evidence of PD prior to 1/1/2005 via the MRI, pursuant to 4600(d). Turner v. Nat l Union Fire Ins. Co., 41 CWCR 39. ADJ , Feb. 6, 2013, Order Denying Reconsideration. (Bingo 1) DFEC Defense Must Look at Earning Capacity, Not Just Actual Earnings: While in hot pursuit of the Riddler, Robin trips and falls onto his hands breaking his wrists. Robin returns to work but is unable to do some of his usual and customary tasks. Mr. Wayne is able to accommodate this restriction because he has hired Batgirl to help out. Defense attorney seeks to rebut the diminished future earning capacity (DFEC) factor in resolving PD based on the theory that Robin s post injury pay remains the same. Will Defendant be able to rebut the use of the DFEC factor on that theory? Answer: C. The challenge to the DFEC fails, because the defense only looked at post-injury earnings, and failed to consider the effect the disability would have on potential future earnings capacity. Chase v. Contra Costa Mosquito & Vector Control District (2013) 41 CWCR 117 (Bingo 2) No DFEC rating when Applicant may benefit from Voc Rehab - Lisa s lifelong dream was to perform on Broadway, but after years of failed auditions, she took a job delivering singing telegrams. Lisa suffered a work injury and was unable to sing anymore, but her brother-in-law took pity on her after the accident and hired her to manage his small local theater for the same salary she made delivering telegrams. The QME on Lisa s case provided 21% WPI, but Applicant s vocational rehabilitation expert testified at trial that Lisa s work preclusions caused a 65% DFEC, though he also felt that Lisa may benefit from voc rehab. The WCJ found that applicant sustained 65% PD. Defendant s petition for reconsideration will be granted. Why? Answer: A. In order to rebut a scheduled rating using DFEC, it must be shown that, due to the industrial injury, the employee would not benefit from rehabilitation. Gerton v City of Pleasanton (2013) 2013 Cal. Wrk. Comp. P.D. LEXIS 105, 41 CWCR 147. (Bingo 23) Medical Treatment & Utilization Review Issues MPN Can Terminate a Doctor from the MPN - Dr. Rogue is in the employer s MPN and has made it a habit of prescribing nonstandard treatments including retail therapy, wasabi massage, and plastic surgery. His theory is, If you look fabulous, you will feel fabulous. Results vary. Dr. Rogue ignores all requests for information from UR and continues to prescribe the non-standard treatments.the MPN terminates Dr. Rogue without employing the 3-step disciplinary process the contract requires. Dr. Rogue sues for breach of contract. Choose the best answer.

6 Answer: A. Dr. Rogue loses. The Court of Appeals held that the MPN was within its rights to terminate the doctor where he was not responding to requests to evaluate the appropriateness of the treatments and where he was continuously prescribing non standard treatments without providing justification in each of the cases because it was clear to the court the physician would continue these behaviors regardless. Roger v. CorVel Healthcare Corp. (2013) 2013 Cal. App. Unpub. LEXIS 3489; 78 Cal. Comp. Cases 638. (Bingo 4) Civil Liability Homeowner Not Liable to Third Party for Serving Alcohol to Homeworker - Barry Brewsky hires Woody Woodworker to build a deck in Barry's backyard. After a long day's work, Barry hands Woody a beer (Woody is over 21 years old), and the two admire the deck. They have another round. Then another. Woody drives home and runs over an elderly lady in the crosswalk, who in turn sues both Woody and Barry. Will Barry Brewsky have to pay out the big bucks? Answer: B - No, Barry is not liable for merely furnishing alcohol to Woody. A homeowner who merely furnishes alcohol at their residence is not liable when it causes injury to another. The exception is when an adult knowingly gives alcohol to a person under 21 years of age at the adult's residence. The elderly lady can sue Woody, but Barry is not going to be liable, regardless of whether he knew that Woody would have to drive after consuming the beers. Rybicki v. Carlson et al. (2013) 216 Cal.App.4th 758 (Bingo 3) Plaintiff has the Burden of Proof to show Employee acted in the Course and Scope of Employment - Ethel Smethel sues Taxi Company because one of its drivers, while driving one of the company's cabs, negligently ran over her prized petunias, which were resting along the curb of her front yard. Taxi Company contends at trial that they are not responsible for the damaged petunias because Taxi Driver was not acting in the course and scope of his employment when he ran over the petunias. Choose the best statement. Answer: A. Ethel has the burden to proof, and must present evidence at trial to convince the trier of fact that Taxi Driver was acting within the scope of his employment when he destroyed the flowers. It is not the company's burden to prove otherwise. Perry v. County of Fresno (2013) 215 Cal.App.4th 94 (Bingo 5) County Not Liabile for Failure to Put Warnings on Trails - Yosemite boasts its beautiful trails as a way to boost tourism. Tina Tourist tripped over a tree trunk while trotting through trails in Yosemite. She sued the County of Mariposa, alleging that the County negligently failed to post warnings regarding a dangerous condition. Who wins? Answer: C - The County wins. Public entities have 100% immunity from liability when injuries are caused by conditions of trails that are used for recreational purposes. It's true. Montenegro v. City of Bradbury (2013) 215 Cal.App.4th 924 (Bingo 11) Employer Not Liable for tortious Acts of Employee that were not an Outgrowth of the job - A bank teller was feeling particularly upset over the fact that his neighbors were suing him. Being a diligent and resourceful employee, he learned that his neighbors' mortal enemies were clients of the bank. The bank teller wrote intimidating and threatening letters to the neighbors, indicating that they should drop their suit against Bank Teller, and making it seem like it was the mortal enemies who wrote the letters. The neighbors discovered the plot and sued the bank, alleging that it was liable because the deed was done by its employee within the course and scope of Bank Teller's employment. Who wins? Answer: B - The bank wins. "But for" causation is not enough. In order for an employer to be liable, there must be a "reasonably foreseeable consequence" related to the employment, which is deemed to be an "outgrowth" from it. Here, even though "but for" causation exists, the fact that Bank Teller used bank information to write

7 intimidating letters regarding his own personal lawsuit is beyond any reasonably foreseeable consequence; such acts were not an "outgrowth" of his duties. Perry v. County of Fresno (2013) 215 Cal.App.4th 94 (Bingo 14) Destruction of Property by City Employee is not a Due Process Violation - P.I. Pete is a personal injury attorney. His client, Obe Livious, was at a City beach and threw away a plastic water bottle in the trash can. The City life guard saw this and became enraged that Obe had not instead placed the bottle in the recycle bin. Life Guard approached Obe in a rage, grabbed Obe s boogie board, and smashed it in half. P.I. Pete sues City alleging City violated Obe s due process rights. Choose the best answer. Answer: C - Even though the Life Guard worked for the City, and even though he committed an act that damaged Obe s property, this is not a due process violation because Obe did not have a constitutional right to maintain his boogie board in one piece. P.I. Pete should have known better and should have filed a suit based upon tort law. Perry v. County of Fresno (2013) 215 Cal.App.4th 94 (Bingo 24) Government Not Liable for Acts by Employees that are Disconnected from The Policies the Employee is to be Carrying Out - Henrietta Homeowner is being audited by the State. Allen Auditor arrives at Henrietta's home to go over some numbers. While at the house, Allen steals some of Henrietta's jewelry. Henrietta is now suing the great State of California alleging that, through the auditor, the State has violated her rights. Does Henrietta get a million-dollar pay day?answer: A - The government is not liable for acts by employees that are entirely disconnected from the policies that its employees are meant to be carrying out. Stealing jewelry had nothing to do with the audit, and thus the government will not be held responsible for Allen's acts. Perry v. County of Fresno (2013) 215 Cal.App.4th 94 (Bingo 36) County Proper Defendant for District Attorney Withholding Information from Defendant that Resulted in Wrongful Conviction - Adam was charged with murder and convicted based on testimony by Lance. Lance claimed that when he and Adam were in jail together, Adam admitted to shooting a man over a dispute about money. The district attorney Calvin knew that Lance was a known heroin addict, a convicted felon and knew that Lance received a reduced sentence in exchange for his testimony against Adam. Calvin never disclosed these facts to Adam s attorney. Adam served 24 years for a crime he did not commit, and the conviction on appeal was overturned. Adam sues, what entity is the lawsuit properly maintained against? Answer: B - Even taking into account the control and supervisory powers of the Attorney General, the County District Attorney represents the county when establishing policy and training related to the use of jailhouse informants. Therefore, the cause of action lies against the County under 42 U.S.C Goldstein v. City of Long Beach (2013) 715 F.3d 750(WL ) (9th Cir.) (Bingo 12) No Qualified Immunity for Officer who violates a protected constitutional right - Police officer Selena hates anyone who listens to Justin Bieber. While on patrol, she pulls up alongside Taylor who is bumping to As Long As You Love Me. Selena s ears start to bleed and in her anger, she pulls out her gun and shoots Taylor in the left arm. When interviewed about the shooting, Selena lies and says she shot Taylor because she wasn t wearing her seatbelt. Selena then argues she should receive qualified immunity from suit under 42 U.S.C How should the Court rule? Answer: B - A police officer, who violates another's constitutional right, will receive qualified immunity from suit under 42 U.S.C if the right the officer violated was not protected by clearly established law at the time he acted.see Pearson v. Callahan,555 U.S. 223, 232,29 S.Ct. 808, 172 L.Ed.2d 565 (2009). Since 1998, clear precedent has established that a police officer violates the Fourteenth Amendment due process clause if he kills a suspect when acting with the purpose to harm, unrelated to a legitimate law enforcement objective.) A.D. V. California Highway Patrol

8 (2013) 712F.3d 446(9th Cir.) (Bingo 19) No Violation of Due Process or Property Rights in Destruction of Marijuana - Sheriff deputies seized and destroyed 1,500 pounds of marijuana under cultivation in a remote area of Dope County. Plaintiffs Snoop Dogg and Rob Ford had written physician recommendations for up to two ounces of marijuana per day, and sued the County for conversion and violation of their constitutional and statutory rights to be free from unreasonable search and seizure and deprivation of property without due process. How did the trial court rule and why? Answer: A - The court held that the County did not unlawfully converted the property or violate their constitutional and statutory property rights when it destroyed the seized marijuana. Notwithstanding Sections and , at any time after seizure by a law enforcement agency of a suspected controlled substance, that amount in excess of 10 pounds in gross weight may be destroyed without a court order. Littlefield v. County of Humboldt (2013) 218 CA 4th 243. (Bingo 30) Civil Damages Civil Defendant Responsible Only for Medical Bills Actually Paid - Mikey Cylus created a 42 car pile up on his way to work when he started switching lanes to the beat of Blurred Lines by Robin Thicke. At trial the injured parties submitted their full medical bills to prove up their potential future medical costs. The court will: Answer: C - The court would only allow the parties to submit amounts actually paid for medical costs. This prevents a windfall on the behalf of the injured parties. The law s intent is to simply make an injured party whole. Corenbaum v Lampkin th (2013) 215 Cal. App (Bingo 10) Civil Recovery Reduced Due To Plaintiff s Intentiional/Negligent Behavior - After a long night of partying, Jesse Pinkman injured himself while picking up munchies at a local convenience store. Jesse had an altercation with a malfunctioning automatic door. The jury found that Jesse was 50% at fault. Due to this partial fault the court would? Answer: B - The court would reduce Jesse s recovery of all paid medical expenses by 50% in order to not reward intentional/negligent behavior that causes injury to oneself. Luttrell v Island Pacific Supermarkets, Inc. (2013) 215 Cal. th App (Bingo 15) Common Fund Doctrine Requires That Employer Bear Proportional Share of the Costs of Litigation - Jack was injured by a negligent motorist while delivering books for his work. Jack s work paid for $99,000 of medical treatment under an ERISA compliant benefits program. Jack recovered $200,000 from the motorist and paid $150,000 in attorney s fees. Now Jack s work is seeking $99,000 in reimbursement under a clause in the benefits program. The court will: Answer: C - Order $24,750 be reimbursed taking into consideration a proportionate share of attorneys fees so that Jack does not bear the full burden of litigation costs. Due to the common fund doctrine, the employer must bear a proportional share of the costs of litigation. This doctrine can be waived if made explicitly in writing. US Airways, Inc. v McCutchen (2013) 133 S. Ct (Bingo 39)

9 Penalty, Serious & Willful Misconduct, Labor Code 132a S&W Claim Upheld Where Employer Knew of Co-Worker s Intoxication Problem - Tanya loved everything about her job, except for her co-worker George. George was nice enough and an asset to the firm, but was a raging alcoholic. Everyone knew that George would frequently return from client lunches completely intoxicated. Tanya s complaints about George were ignored for years, as he brought in many new clients and always got his work done! George was an annoyance, was not considered a danger to others, until one day after having too many mimosas at a firmsponsored client brunch, he fell on top of Tanya causing her injury. Does Tanya win her Serious and Willful Misconduct claim? Answer: D. Tanya wins the S&W, an employer is guilty of serious and willful misconduct if it (1) knew of the dangerous condition, (2) knew that the probable consequences of the condition would involve serious injury to an employee, and (3) failed to take corrective action. County of Los Angeles v WCAB (Ellefson) (2013) 78 CCC 713 (Bingo 9) Penalty and Sanctions Where Multiple Delays Occur Even After Award - Rose claimed a work injury in The claim was not accepted so she used her own sick leave for 3 months and returned to work. In 2009 the employer accepted the claim based on the treater s P&S report. Neither the TD nor PD was paid, and at a WCAB hearing in April 2011 the employer agreed to an Award of TD, PD, and a 25% penalty. The Award was paid late, so Rose petitioned for another 25% penalty on the delayed benefits. The Judge denied the penalties saying the WCAB should not be used for the purposes of imposing endless penalties on resolved issues. On reconsideration did the commissioners agree? Answer: C - the commissioners decided that additional penalties were justified by the ongoing delays by defendants, and they further recommended that bad faith sanctions and attorney fees be awarded. The commissioners noted that penalties serve both the remedial and penal purposes of LC Under Rule 10561, bad faith actions or tactics include actions that are indisputably without merit, and the panel explained that sanctions were appropriate as the employer repeatedly failed to perform its statutory obligations to timely pay TD and PD without explanation. Nash v. County of Los Angeles, General Hospital (2013) 41 CWCR 171, ADJ , Apr. 25, (Bingo 21) Industrial Disability Retirement Correct Standard of Review for appeal to Superior Court of an Administrative Decision for an IDR - Shaq, retired from basketball after a couple of knee surgeries and became a Sheriff s Deputy. Due to budget cuts the County used SMART cars patrol vehicles. Shaq s knees pressed against the dashboard for hours on end causing damage to his knees, and his doctors agreed this was a work injury and that he could no longer do police work. Shaq applied for an Industrial Disability Retirement, and while he waited for his call back from a TV Sports Show producer, the Retirement Association hired Dr. Formage, who said that 100% of the knee injury was due to basketball injuries. The Retirement Board accepted Dr. Formage s report and denied the IDR. Shaq appealed taking the issue to the Superior Court, which found that substantial evidence supported the Board s decision to deny the IDR. On appeal, what s the most correct statement? Answer: B The correct standard of review is independent judgment. Although there is a presumption of correctness of the administrative findings, this presumption is rebuttable. The trial court s job is to weigh all the evidence and decide whether or not Shaq sustained his burden of showing that the weight of the evidence from both sides was contrary to the Retirement Boards finding. Alberda v. Board of Retirement of Fresno County Employee s Retirment Ass n Court of Appeal (2013) 41 CWCR 29 (Bingo 22)

10 Liens Medical-Legal Expenses are Liens, Cannot Be Pursued as a Petition for Costs to Avoid Activation Fee - Cat s Copy Service provided several volumes of records that had been ordered by an injured workers in a denied workers compensation claim. Cat s filed a lien, but then filed a Peitition for Costs and with drew their lien in order to avoid paying the activation fee. Should the Petition for Costs be granted? Answer: A - The Petition for Costs should be denied, as lien claimants cannot avoid the activation fee by withdrawing their lien and filing for a petition for costs. Costs as defined by labor code 5811 do not include costs and expenses that are governed by other specific statutes. The legislature created a specific statutory framework for pursuing claims for medical-legal expenses, which includes copy costs. Martinez v. Allstate Ins. Co. (Terrazas) (2013) 78 CCC 444 (WCAB en banc) (Bingo 29) Psychiatric Claims Good Faith Personnel Action Defense Expanded to Include Reaction to Lack of Support - Peter was a probation officer who was subject to an Internal Affairs investigation over his criticism of subordinate probation officers. He claimed psychiatric injury when the Internal Affairs complaint was filed and went off work. The AME determined that the psyche injury was caused: 1/3 by the IA investigation, 1/3 by the initiating complaint, and 1/3 by the lack of support by superiors. Labor Code bars the psyche claim if a substantial cause, at least 35%, results from good faith personnel action. How do you rule? Answer: B - The 1/3 IA investigation is personnel action, and the 1/3 lack of support by superiors included implementation of the IA investigation which may contribute enough so that the 35% substantial cause is met to establish the GFPA defense, further clarification from the AME is needed. This Court of Appeals decision clarifies and expands what should be considered when determining whether the substantial cause requirement for the good faith personnel action defense has been met, including that the lack of support causation could have included in part personnel action as shown by the initiating the Internal Affairs complaint. This is an important Court of Appeals decision that supports prior significant panel decisions. County of Sacramento v WCAB (Brooks) (2013) 215 Cal.App.4th 785, 78 CCC 379. This was a defense victory litigated by Elizabeth Trimm, a partner in the Sacramento office of Hanna & Brophy. (Bingo 20) Death Benefits Minor Dependents with Different Mothers Both Entitled to Death Benefits - Don Juan was tragically killed on the job. He was survived by his totally dependent wife and minor son Matthew. It was later discovered that Don had a minor daughter, Miya, with a woman who was not his wife. Miya says that Matthew gets nothing, since she is a total dependent, and Matthew is only a partial dependent since he shares dependency with his mother the surviving spouse. LC says a totally dependent child gets the entire death benefit, and this section makes reference to LC 3501 which defines a totally dependent minor as one who the decedent is obligated to support, and one for whom there is no surviving totally dependent parent. Does Miya get the entire death benefit? Answer: C - the death benefits are to be shared by these two minors. In 2002, the legislature amended LC by referring to LC LC 3501 defines a totally dependent minor as one who lived with the deceased parent, or for whose maintenance the parent was legally liable, and where there is no surviving totally dependent parent. In this divided panel, the majority reasoned that the legislature did not intend this LC 3501 reference found in LC to limit benefits of other dependent minors. Maxwell v. Oak River Ins. Co. (2012) 41 CWCR 38. (Bingo 35)