AOE-COE

Torres v. Greenbrae (BPD) (45 CWCR 152):

 

The applicant was employed as a tree trimmer, fell from a tree, hit his head on the tree trunk and lost consciousness. The applicant was transported to hospital and diagnosed with a closed head injury, loss of consciousness, and a cervical strain.

The applicant complained of dizziness, nausea, problems standing, severe pain in the head, neck pain, confusion when driving. The applicant complained of nightmares about falling generally and falling out of a tree.

 

The parties stipulated that he sustained physical injuries to his head, neck, back, and ears.

 

The applicant was seen by a psychiatrist who diagnosed a mild traumatic brain injury and concluded the applicant had sustained a psychiatric injury secondary to the brain injury. He signed the applicant with a 14% whole person impairment. The applicant was also seen by Agreed Medical Evaluator in neurology: found post traumatic headaches, cognitive, vestibular, neck impairments.

 

The matter proceeded to trial and the parties stipulated applicant sustained a psychiatric injury, disagreed on whether there was compensable permanent disability.

 

The WCJ determine the applicant sustained an industrial injury to his head, neck, back, hears, and psyche, with resulting cognitive difficulties, but also determined that the psychiatric permanent disability was not compensable because applicant had not incurred a catastrophic injury. According to the record, LC §4660.1 was raised at trial, but the violent act exception to the prohibition of psychiatric compensable consequence permanent disability was not specifically addressed.

 

Applicant filed a petition for reconsideration.

 

The WCAB concluded that applicant psychiatric injury arose directly from the event that caused this injury. The panel considered the applicant’s nightmares as suggestive that applicant sustained a direct psychiatric injury and noted that the psychiatrist had not addressed whether applicant’s psychiatric injury was direct or compensable consequence of the physical injury.

 

Labor Code §4660.1(c)(1) denies an increase in permanent disability for psychiatric, sleep and sexual dysfunction that arose from a compensable physical injury, but does not bar psychiatric impairment that directly arises from the injury.

 

The panel indicated there was conflicting evidence on whether the psychiatric injury was a direct result of the fall and thus required medical-legal clarification for determination on this issue.

 

The panel concluded that, because applicant raised Labor Code §4660.1 at trial, the issue of violent act exception to the bar of increase ratings for psychiatric disability was preserved even though is not specifically addressed.

 

The panel next determined that applicant’s injury fit filed an act exception. Pursuant to Labor Code §4660.1(c)(2)(A), even where the psychiatric injury as a compensable consequence of the physical injury, is compensable if it resulted from being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3.

 

To fall under the violent act exception, the act pursuant to the cases of Larsen (44 CWCR 111) and Madson (45 CWCR 65) must be (1) be characterized by strong physical force, (2) characterized by extreme or intense force, or (3) vehemently or passionately threatening.

 

The panel rejected defendant’s contention that the term victim is used in the Labor Code Section, showed a legislative intent to limit the section to person’s harm by criminal acts. Panel noted the word victim was not commonly so narrowly construed.  Persons are victims of natural disasters, diseases and political oppression which are not criminal acts.

 

Further, the legislature had not expressly limited the violent act exception to criminal acts, as it had in Labor Code §4650.5, which conditions its application to situations where the injury as a result of a criminal act of violence against an employee.

 

The panel concluded that under the plain language of the statute applicant’s psychiatric injury was compensable. The Board stated, applicant’s injury in a fall from a height, striking his head in a tree trunk, was the result of an extreme or intense force and was vehemently threatening, thus fitting two of the three violent act categories.

 

Because the injury was compensable under the violent act exception, the question of whether was a catastrophic injury question was moot.

 

The psychiatrist had added sleep and sexual dysfunction pursuant to Almaraz/Guzman II.

 

The WCAB stated that sleep and sexual dysfunction ratings were add-ons that §4660.1 specifically excludes and that the violent act exception only applies to psychiatric add-ons.

 

Labor Code §4660.1 did not overrule Almaraz/Guzman II decision in the rules must be read together. The legislature, though §4660.1, undertook to eliminate sleep and sexual dysfunction add-on, to allow such add-ons under Almaraz/Guzman II would circumvent the intent of Labor Code §4660.1, which was to promote uniformity and decrease the number of compensable consequence psychiatric, sleep and sexual dysfunction claims, which, in the legislature’s view constituted a fraud risk.

 

Moreover, the panel stated, sleep and sexual dysfunction are incorporated into the activities of daily living calculation at table 1-2 of the AMA guides. In short, the sleep and sex disorder at-ions under Almaraz/Guzman II in this case would not only appear to frustrate the intent of LC 4660.1 but would also appear to allow duplicate rating for the same condition.

 

The WCAB rescinded the WCJ’s findings and determined that the strict AMA guides rating for psychiatric permanent disability be included in combined with the compensable physical disability rating, increasing applicant’s permanent disability from 57% to 78%.

 

 

Villacis v. County of Los Angeles Sheriff’s Department (BDP) (45 CWCR 95) (EXPERT MEDICAL EVIDENCE NEEDED IN ATTEMPTED SUICIDE CASE)

 

Applicant was injured in a fall from a four-story building on August 6, 2014 sustaining injury to various body parts. The applicant claimed he had slipped, causing the fall. Defendant contended that applicant jumped off the roof in an apparent suicide attempt.

 

The applicant testified at trial that he did not attempt suicide and was injured when he slipped on loose gravel and fell off the roof and he did not hear or see anyone else on the roof when he fell.

 

Two defense witness testified that they saw applicant on the roof.  One of the witnesses described applicant’s face as expressionless and playing before he kind of like casually leapt over the side as if it was nonchalant type of thing. The second witness testified that applicant looked surprised and startled when he turned and saw them, went to the edge of the roof, and hopped down onto something and see if he knew something was on the other side of the ledge that he could land on. A third witness, the last person to exit from the stairs onto the roof, after ensuring that the door would not lock once close, then turned to see applicant’s head striking up over the edge of the roof before ducking down. He described looking over the edge of the roof, seeing applicant’s hands touching the legs and just falling away from the latch.

 

Defendant attempted to call applicant’s wife is an adverse witness. Applicant objected, citing marital privilege.  Defendant argued that the wife can wave that privilege when she responded to questions and deposition but conceded that she had invoked the privilege for many of the questions asked although answering others. The WCJ, citing Evidence Code 971, did not allow her to testify. Defendant did not offer deposition and evidence.

 

The WCJ found that the three defense witness’s testimony was credible, but was not consistent and not corroborated, but found applicant’s testimony credible and the defendant had not met its burden of proof that applicant’s fall had been intentional.

 

Defendant filed a petition for reconsideration.

 

The WCAB began by concluding that the record lacks medical evidence regarding whether the applicant was suicidal and if so whether the attempted suicide was industrial. There was no psychiatric assessment in the record and none of the medical studies cited by defendants was reviewed by any physician nor offered into evidence.

 

Citing the in bank decision in Hamilton v. Lockheed Corporation (66 CCC 473), the panel concluded that whether an act is suicidal is a medical question, which requires medical evidence.

 

Pursuant to the case of Searle v. Allstate Life Insurance Company (38 CA3d 425), the burden of proving intent is properly allocated to the party charge with proving suicide (here, intent to self-inflict injury) an applicant should be permitted to present evidence to navigate suicidal intent. According to that case, if the applicant did not understand the physical nature and consequences of the act, whether he was sane or insane, then he did not intentionally kill himself. The panel concluded without any evidence of mental capacity at the time of the fall, it could not determine whether applicant’s fall was attempted suicide.

The panel conceded that great weight is ordinarily ascribed to the WCJ’s determination on credibility of the witnesses, but concluded that applicant’s wife’s testimony should have been received. Under evidence code 970, 971 and 980 in the case of People v. Bradford (70 CA2d 333), there are two areas of marital privilege: first, a testifying spouse cannot be compelled to testify against another spouse, with certain exceptions. That privilege is vested solely in the testifying spouse. The second area, vested in either spouse if one spouse does testify, is that the testifying spouse cannot disclose confidential marital communications.

 

This case, applicant’s wife already waived her privilege by answering some questions in the deposition, while asserting the confidential communication privilege as to others. The WCJ should’ve allowed applicant’s wife to testify to the questions that did not contain confidential marital communications. Any further privilege assertions would’ve been analyzed by the WCJ as to whether the privilege would apply. Given the wife’s deposition testimony, defendant should have had the opportunity to cross-examine her at trial.

 

The panel rescinded the matter and returned it for a Status Conference to allow the parties how to best proceed.

 

In a footnote the panel remarked that the wife had apparently previously given recorded statements to an insurance investigator to support her husband’s claim. These were not transcribed or offered into evidence. The panel suggested, on remand, that the parties consider whether the wife’s recorded statements constitute a waiver of any confidential communication privilege she holds and, moreover, whether a complete waiver occurred under Evidence Code 973.

 

It should be noted that the WCAB is bound by the Evidence Code regarding the issue of privilege.

 

Zhu v. Workers’ Compensation Appeals Board (Court of Appeal) (  ____CCC_____):

 

The applicant, an in-home caregiver, was riding her bicycle from one private home where she worked to another home where we she was scheduled to work when she was struck and injured by a car. She was paid for working at both locations.

 

The WCAB concluded that the going and coming rule barred the applicant’s claim for worker’s compensation benefits.

 

The dissenting Commissioner and the WCJ found an exception to the going coming rule.

 

The Court of Appeal concluded that an applicant who was injured while riding her bicycle between the homes of disabled clients to care for them on behalf of her employer (the state) was within the course of employment.

 

The going and coming rule does not apply when the employee is in transit between points other than the home and the workplace.

 

In these cases, the real issue is not whether the going and coming applies, but whether transit is part of the employment or the employment relationship.

 

When it is clear that the transit is not a commute between home and work at a fixed time, the inquiry should be whether the transit was the employer’s choice or was for some benefit to the employer or the employment relationship.

 

The Court of Appeal ruled that under the facts of this case, the going and coming rule does not apply because the applicant was not commuting between her home and the workplace at a fixed time (Hinojosa v. Workers’ Comp. Appeals Bd. (1972) (8 Cal.3d. 150, 157]).   Zhu’s transit bestowed a direct benefit on the Department, as the Department knew that Zhu had to transit between homes to service more than one home a day, her transit was at the implied request of the Department and was thus a part of her employment relationship.

 

The applicant’s transit for the department was for the benefit of the department and was impliedly requested by the department.

 

In addition, the Court of Appeal agreed did not disagree with Commissioner Razo that the “required vehicle” exception to the going and coming rule applied if the case facts had come under the going and coming rule.

 

County of Sacramento Contracts v. Workers’ Compensation Appeals Board (McCartney)

(Court of Appeal, unpublished) (____CCC____)

 

The Court majority concluded that Appeals Board erred in reversing the WCJ, who found that applicant, a deputy sheriff, did not sustain injury arising out of and occurring in the course of employment to his skin in the form of actinic keratosis.

 

The Board had applied the “contributing cause” standard of South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291 [80 Cal.Comp.Cases 489], while relying upon the PQME’s opinion that sun exposure was a contributing factor to the development of applicant’s actinic keratosis though she could not formulate the precise numerical percentage of the contributing effect.

 

According to the majority of the Court, however, the PQME “never acknowledged that there was a causative role of unknown degree arising out of McCartney’s employment.  Rather, she took great pains to explain (repeatedly) that it was not possible to attribute the cause of applicant’s condition to any particular period of exposure to the sun, and therefore it was nothing more than speculation to identify the work-related exposure as a contributing cause.

 

The Court of Appeal ruled on this evidence, the WCJ properly concluded that the applicant failed to establish that work-related sun exposure contributed to his condition by a reasonable probability.”

 

 

 

The dissent countered, among other things, that the sun exposure McCartney received throughout his life, including his years on the police force, was cumulative and contributory, and that the sun exposure applicant received while employed as a law enforcement officer played some role in the development of actinic keratosis, but the PQME could not give a definitive percentage of how much it caused.

 

The majority disagreed that the PQME’s testimony could be read as supporting the latter point.

 

Rockefeller v. Department of Corrections (BPD) (45 CWCR 150):

 

The applicant committed suicide by shooting himself in the head.

 

The applicant surviving dependence filed a claim against the employer, alleging that his employment caused his death.

 

The panel Qualified Medical Evaluator reviewed applicant’s records, took a history from the widow that included industrial stress, alcoholism and marital and family problems, without further details being given in his opinion. He did not diagnose applicant with any psychological injury under the DSM-IV with regard to causation. The physician opined that 80% of the cause of applicant suicide related to nonindustrial factors, including 50% alcoholism and alcohol dependence and 30% to chronic marital discord as evidenced by marital therapy notes. Industrial cumulative stress formed the remaining 20% of the cause of applicant suicide.

 

The physician reading Labor Code §3600(a)(6), concluded that the proper causation standard was whether applicant willfully and deliberately committed suicide. In assessing that question, the physician stated the applicant became willfully intoxicated and took his own life. The only way the applicant’s claim would be compensable is if the trier of fact concluded that voluntary intoxication is not a willful act. The doctor affirmed that opinion in his deposition, but also stated, when questioned about the standard set forth in the case of South Coast Framing (80 CCC 489), it followed that the industrial stress was a contributing cause to applicant’s death.

 

The physician also testified that the suicide by gunshot was undoubtedly a deliberate action that the worker performed while intoxicated, which he took to be a willful act, although in voluntary intoxication is a different issue.

 

The physician concluded that pursuant to South Coast the sole issue was whether the employment contributed to applicant’s death, and the answer was yes.

 

The WCJ found that a decedent’s death by suicide entitled his dependence to death benefits.

 

Defendant filed a Petition for Reconsideration.

 

The WCAB began by pointing out that the record had been incompletely developed, pointing out that the Qualified Medical Evaluator emphasize the cause of the suicide and not the cause of the underlying injury.

 

Acts of suicide, do not generally arise directly from events of employment but rather are the compensable consequence of an underlying industrial injury.

 

Therefore, to establish a compensable death claim by suicide, applicant’s dependence needed to first establish a compensable injury.

 

The Qualified Medical Evaluator did not diagnose an underlying psychiatry condition pursuant to DSM-IV, a necessary condition to establish a compensable psychiatric injury.

 

The WCAB next stated that under the case of “Rolda”, applicant survivors needed to establish that actual events of employment caused a psychiatric injury and that those events were either the predominant, or and a substantial cause of the injury.

 

Only after such a determination could the survivors prove the injury contributed to the applicant’s death under the South Coast case standard, observing that its interpretation was consistent with the facts in that case, where a prior excepted industrial injury resulted in medication use which, in turn, contributed to death.

 

Thus, with regard to suicide, applicant carries the initial burden of proof that an industrial injury exists and that the industrial injury contributed to decedent’s active suicide. (LC 5705)

 

Emphasizing the record was inadequately developed on the diagnosis and predominant or substantial cause issues, the panel reason that without any determination as to whether applicant sustained an industrial injury to his psyche, it is impossible to conclude whether an industrial injury contributed to applicant committing suicide.

 

Once the applicant satisfies these burdens by a preponderance of evidence, the burden shifted to defendant to establish an affirmative defense.

 

Defendant has raised the issue of whether applicant’s injury was intentionally self-and conflicted. To establish an affirmative defense to a death claim from an intentionally or willfully afflicted injury, defendant has the burden of proof by a preponderance of the evidence.  The “irresistible impulse” test states that if the decedent’s dependence could establish that the industrially caused injury caused the applicant to feel that the death would provide the only relief from the injury, then the death was compensable and less defendant could establish that applicant could have resisted the impulse. (Burnight 25 CCC 121)

 

In the case of Chu v. WCAB (61 CCC 926) further discuss Labor Code §3600(a)(6) willful and deliberate act barred to compensability.  The WCAB applying both cases stated that with regard to the affirmative defense of intentional infliction of injury at willful and deliberate causation of death, defendant must prove that decedent’s decision to commit suicide was voluntary in the sense that decedent could have decided against suicide and refrain from killing himself, in spite of any mental illness. In a footnote, the panel commented that the more methodical and planned out a suicide is, the more likely it will be found to be the result of an intentional or willful act.

 

The WCAB rescinded the WCJ’s determination and returned the case to the trial level to establish whether applicant sustained a compensable psychiatric injury and whether that injury contributed to applicant suicide and whether defendant could establish the affirmative defense.

 

Puccio v. Online Graphics (BPD) (45 CWCR 155):

 

Applicant sustained an injury to his right wrist and several ribs on the phone from a ladder.

 

Paramedics noted that the applicant was in atrial fibrillation with rapid ventricular response. Because of multiple contusions and fractures from the fall, the applicant was not provided the anti-coagulant Heparin.

 

In the hospital two days later he developed acute altered mental status and right hemiparesis, and was diagnosed with left hemispheric and was diagnosed with left hemispheric embolic cerebrovascular accident (CVA), that resulted in the development of dense right hemiparesis with expressive aphasia.

 

The Agreed Medical Evaluator reported that applicant’s arterial fibrillation was not industrially related and nine not been caused by the fall from the latter, he stated his belief that applicant was actually having arterial fibrillation when he was on the latter, which may have caused his fall. He went on to state that the nonindustrial arterial fibrillation caused the CPA, and therefore the CPA was nonindustrial.

 

The Agreed Medical Evaluator changed his opinion during the deposition. The physician concluded the CPA was industrially related. The physician had been provided, for the first time, information that the orthopedic injuries had been found industrial. He then noted that the doctors had withheld blood thinning medication, the indicated treatment for arterial fibrillation, because of the danger its administration posed to a person with applicant’s fracture and contusion injuries.

 

The Agreed Medical Evaluator concluded it was better than 50%, he would not have had a CVA if he had been started on heparin two or three days before his embolic CVA. He further stated that it was his best medical opinion that, if the fall itself is being considered industrial, then everything that happened pertaining to the fall must be industrial, and the fact that he was not placed on anticoagulant therapy which led to a greater than 50% chance his embolic CVA has to be industrial.

 

The physician in a supplemental report after reviewing additional records concluded that if fall and subsequent orthopedic injuries have been deemed to be industrial, it is his expert opinion that the CPA, which occurred because of the arterial fibrillation, and the fact that he could not be started on anticoagulant therapy also arose out of or was caused by the fall. This is to the degree of reasonable medical probability.

 

The WCJ disagreed with the AME, observing that the evaluator based his opinion on a legal, rather than medical conclusion. The Agreed Medical Evaluator had changed his opinion on learning that there’d been a finding that applicant’s injuries were industrial. In determining that the CVA was nonindustrial the WCJ relied on the first opinion of the Agreed Medical Evaluator.

The WCAB granted reconsideration and started by indicating the definition of a compensable consequence. A subsequent injury constitutes a compensable consequence of an industrial injury if the industrial injury was a contributing factor in the occurrence of the subsequent injury. (Beaty 43 CCC 444)

 

The WCAB further stated that is well settled that injuries occurring during the treatment of the industrial injury are compensable consequences of an industrial injury. (Heaton 11 CC 78).  In Heaton and was held that the aggravation by negligent medical treatment is compensable and rated related back to the industrial injury.

 

The WCAB reviewed several cases holding that medical treatment for nonindustrial condition may be warranted on an industrial basis if it is needed to cure or relieve the effects of the industrial injury.

 

The WCAB recognized that but for, and because of, applicant’s industrial injury, he had been denied necessary medical treatment to avoid the risk of a stroke that then occurred and caused his present condition.

 

The attending physician had to decide whether to treat the arterial fibrillation in light of the need to take applicant the surgery to repair his fractured wrist. The fact that they chose not to administer the blood thinning drugs meant the applicant had a greater than 50-50 chance of suffering a stroke.

 

Because the medical decision to withhold the treatment for the arterial fibrillation was based on treatment for his industrial injury, his resulting stroke was a compensable consequence of that injury.

 

The WCAB granted reconsideration and amended the WCJ’s decision to include a finding of industrial injury to applicant’s internal and cardiovascular system in the form a CVA.

 

Bass v. State of California Department of Corrections (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 213):

 

The WCJ found applicant suffered a single cumulative trauma injury to his heart, neck, low back, right knee and left foot while working as a correctional officer during the period ending July 15, 2014.

 

Defendant filed a Petition for Reconsideration.

 

That applicant suffered two cumulative injuries one to his heart and orthopedic parts of the body because there were two different dates of injury pursuant to Labor Code §5412.

 

The WCAB agreed with the WCJ.

 

The WCAB found that the date of injury pursuant to Labor Code §5412 to applicant’s heart and orthopedic injuries relevant to the statute of limitations and application of liability for cumulative injury pursuant to Labor Code §5500.5.

However, the WCAB found that section is not determinative of whether there is one or two continuous trauma is. Even though there were two different dates of injury pursuant to Labor Code §5412 or was only one continuous trauma because there was only one period of injurious exposure.

 

Ponce v. Barrett Business Services (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 220):

 

The WCJ found that applicant sustained a cumulative trauma injury to his left wrist during the period ending March 4, 2015.

 

Defendant filed a Petition for Reconsideration arguing that the wrist injury was a compensable consequence of applicant’s prior shoulder injury incurred at applicant’s previous employment was not try determined by the WCJ.

 

The WCAB upheld the WCJ.

 

The WCAB found that an injury is a compensable consequence if the subsequent injury is the direct and natural consequence of the original injury and relates back to the original injury.

 

An acceleration or aggravation of pre-existing industrial injury is compensable as a separate injury.

 

If the aggravation is reasonably attributable to the employee’s subsequent employment there is a separate injury to that period of employment.

 

The WCAB found medical evidence in this case indicated that the wrist injury was due to stress on applicant’s wrists because of work he was performing for defendant. That the opinion of the qualified medical evaluator stating that the prior shoulder injury was a contributing factor regarding stress on the wrist was not inconsistent with this explanation regarding why cumulative trauma turn applicant’s employment by defendant was also a contributing factor.

 

The WCAB found the injury to the left wrist was supported by substantial evidence.

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