Safety Members' Quarterly 2009

 

In 2004, legislation was enacted that dramatically harmed California workers. The harmfulness of this legislation is illustrated by a worker who sustains an amputation below the knee. Previously, that worker would have received approximately $150,000. Following the advent of the 2004 legislation, however, the same worker suffering the same injury would receive only about $50,000. This radical change in the Workers’ Compensation system has caused great harm to all California workers and their families.

Since 2004, a continuing battle has been waged to challenge this evisceration. The rationale to lower the monies received by California injured workers was based on the implementation of the AMA Guides. However, it is important to note that the AMA Guides state specifically that they are "guides". They specifically state that they speak to impairment and do not consider disability. The Guides also speak to the fact that in many situations a doctor can look to outside sources to determine the level of disability and impairment. While the Costa decision indicated the California worker could place the employer in a position to pay for an evaluation to challenge the AMA Guides, such challenges have failed until 2/3/09.

On 2/3/09, an en banc decision rendered by the Workers’ Compensation Appeals Board in the Almaraz/ Guzman case stated that the AMA Guides can be rebutted. This finding opens an avenue for the California worker’s attorney to provide supplemental information to the evaluating or treating physician supporting the position that the permanent disability of a worker impairs his/her earning capacity by creating a competitive handicap in the open labor market. In such cases, permanent disability payments are designed to compensate injured workers for both physical loss and loss of some or all of their future earning capacity.

It is incredible the number of times we have been involved in cases where the evaluating physician, based upon discussions with our client, has come back and acknowledged the inadequacies of the AMA Guides and spoken to a higher level of residual disability outside the parameters of the Guides. This scenario is now supported by the Almaraz/Guzman decision, which has now become an additional vehicle for the California worker to enlighten the Court as to his/her real disability, thereby protecting the worker and his/her family against catastrophic losses not previously acknowledged by the prior post-2004 interpretations of disability.

If you should sustain a work-related injury or illness, make sure your case is evaluated pursuant to the new parameters set forth by the decision of the Almaraz/Guzman Court.

Several legislative and judicial changes have had administrative and political impact on the California Workers’ Compensation system in the year 2008, affecting both costs to employees and the benefits provided to them.

In studies performed at the University of California at Berkeley, Professor Frank Nehauser determined that approximately 66% of occupational diseases and 8% of

specific work injuries are miscategorized as "non-industrial".

A significant result of this miscategorization is a shift in burden for costs related to these diseases and injuries from Workers’ Compensation to State Disability Insurance. Likewise, utilizing Neuhauser’s research, it is easy to see a parallel shift in the burden for industrial-related health costs from the Workers’ Compensation system to the worker and private health plans.

When an injury is misidentified as non-work-related, and the injured worker seeks medical care, the costs of that care are borne by a private health plan, whether it be Blue Cross, Kaiser, Aetna or any other care provider. This dramatically impacts California workers because they incur co-payments and, many times, co-costs for their health insurance.

In addition to this cost shift for employees attempting to negotiate contracts in these very difficult times, employers too are incurring increased costs because of job-related injuries. However, they often are not aware of this increase and are not aggressively identifying and attempting to prevent or eliminate these types of injuries because of the shift in economic burden to the worker.

It is apparent, based upon this study and other findings attached thereto, that the current set-up is misplacing the responsibility for job-related injuries onto the California worker as opposed to the employer, who should be responsible pursuant to California law.

An even more troubling area has been medical reports specifically discriminating against California workers based upon their race, sex or age. As the reader is aware, the Employment Act of 1967 specifically protects individuals 40 years or older from employment discrimination based upon their age. In addition, California Government Code §11135 specifically states: "No person in the State of California shall on the basis of race, national origin, ethnic group identification, religion, age, sex, color or disability be unlawfully denied full and equal access to benefits, or be unlawfully subject to discrimination."

The legislative enactment presented to Gov. Schwarzenegger sought to codify and bring to an end ongoing discrimination violative of both Federal and current state law. However, as stated, the Governor vetoed this bill.

As part of cost containment, the legislators have allowed Labor Code §139.5 to disappear. This statute provided job-related injured workers the opportunity to start a new career as opposed to being discarded by the employer once they had a job-related injury. Section 139.5 also specifically stated that it would remain in effect only until 1/1/09, unless that date was repealed or other legislation was enacted to extend the date. Neither of these actions occurred.

Also, the Supreme Court has placed limitations on employers relative to the gamesmanship created by the Sandhagen case, which had resulted in allowing delays in the provision of medical care to California injured workers. These are very encouraging developments, as they may represent a step toward the ultimate determination that much of the prior legislation and case law harmful to injured workers is unconstitutional.

Many California safety members and their families are protected from the hardships that can result from job-related injuries and illness — and even the work-related death of a safety member — by legislation that provides for what are called "presumptions". These presumptions mandate that certain particular medical problems sustained by safety members may be found to be job-related. Conditions covered by these presumptions include hernias, heart conditions, pneumonia, cancer, blood-borne infectious diseases, exposures to biochemical substances, meningitis. and, for certain classified employees in each case, lime disease and back conditions.

While all the above conditions may be presumed to be job-related, it

should be noted that these presumptions are rebuttable. That means that if an employer can demonstrate the proper fact pattern, the presumption that an injury or illness is job-related may no longer

apply, and medical care under Workers’ Compensation may be denied.

Also, upon the first reading of the statutes establishing these presumptions, they appear to be limited by time parameters based upon the length of employment of the safety member and the date when he/she ceases that employment. According to the Labor Code:

"The presumption shall be extended to a member following termination of a service for a period of three calendar months for each full year of requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity."

In the vast majority of cases, as most safety members are aware, the development of various medical conditions does not occur with one particular exposure, but with sustained exposures throughout the period of employment. Also, the latency period between the exposures and the actual manifestation of a particular illness may well be beyond the 60-month limit. That has led to the misconception that because the manifestation of the illness — or the death of the safety worker from that illness — occurs outside the 60-month window, the safety worker or his/her family may be denied a full cup of justice. However, that is not necessarily true. Each individual case must be reviewed on its own merits, with emphasis on exposures and manifestations.

For example, we recently completed a safety member’s death benefits case where the death actually occurred well outside the five-year window. However, based upon the facts presented, which were consistent with particular case law, the court ruled that the widow was still eligible for the death benefit of $250,000.

An interesting note also about this case (and many others) is that had the widow not sought legal counsel and merely followed the employer’s recommendation, she would have received a death benefit settlement of only $125,000. However, because of concerns raised by a fellow worker, this family came to our office, and their case was settled not for the $125,000 inappropriately offered by the employer, but for $250,000, as noted above. That means the family received an additional $125,000 of much-needed money as a result of taking the initiative to obtain legal counsel. Although death benefits are on the rise, the increase has not occurred fast enough to accommodate the tremendous needs of most injured workers’ families.

While death benefits are a very important aspect of work-related injury/illness presumption, perhaps more relevant to most safety members is the provision of medical care for presumptive injuries. Again, by proper development of the record, the safety member, once his/her condition is shown to be job-related, is able to receive medical care under the California Workers’ Compensation system for the presumptive body parts.

Obtaining medical care may require overcoming some hurdles, but the resulting benefit can be expansive. For example, care can include 24-hour in-home care for the member. Also, care can be extended to other systems that impact the job-related body part(s). For example, if a safety member has a heart condition and also is or becomes diabetic, and the only way to control the heart condition is to control the diabetes, the diabetes then falls within the scope of Workers’ Compensation.

As you may have read in many articles, Workers’ Compensation benefits other than death benefits have been minimized in the last several years. The creative counsel will look for other ancillary medical problems that emanate from your job-related medical condition or the medications you take for it, whether those problems are in the realm of pulmonary, renal, continence, potency or other conditions. Counsel will then ensure that you have medical coverage, not just for the job-related condition, but also for any condition caused or made worse by the job-related injury or illness or the medication you take for it.

I would strongly warn the worker and his/her family to realize that the employer is in an adversarial position when it comes to Workers’ Compensation benefits. Their role is to minimize, mitigate or deny benefits, no matter how long you have been employed or what your political connectivity is to the employer. Therefore, regardless of the position you hold with your employer, and regardless of the social interaction you may have with Human Resources, the Board of

Supervisors, the City Council or the Mayor, it is important to recognize that their role is different when it comes to providing full coverage under Workers’ Compensation.

Your goal as the worker or family member is to ensure that you receive coverage and/or monies because of a job-related condition, and the only way this can be achieved is by building a proper foundation of factual material supporting the reality of the exposures, and establishing that the latency and manifestation period for a particular condition are supported by current case law which allows for the extension of benefits and coverage beyond the five-year limit defined in the Labor Code.

If you unfortunately develop a medical condition which potentially is connected to your work — and you are not within the five-year limit set forth by the Labor Code — it is important that you seek counsel so the foundation on which your case ultimately will be determined is full and complete. If you seek medical opinions without having the proper legal knowledge, the doctors you select, as well as the doctors to whom you are sent, while sharing social niceties with you, may not be placed in the best position to help you if you do not have or understand the proper history of exposures and symptomatology to share with them. The result? You and/or your family members may not receive your full cup of justice — i.e., the medical care and money you rightfully deserve under the Workers’ Compensation system.

Some of our cases involve third-party lawsuits — that is, an allegation made against someone other than your employer or co-workers. Such lawsuits are based on negligent conduct by a third party which causes injury to the person making the allegation. When successful, third-party lawsuits involve damages, which include compensation for medical expenses, wage loss, and pain and suffering.

A primary difference between a third-party case and a Workers’ Compensation case is the potential for unlimited recovery in a third-party suit, versus limited recovery in the Work Comp system. However, the first obstacle in every third-party suit is ensuring enough insurance money is available to cover the responsible third party and pay the compensation rightfully due the injured party.

Third-party negligence often is perpetrated by uninsured and underinsured motorists. Therefore, it is important for all safety members to obtain uninsured motorist coverage. This coverage is inexpensive and provides financial security and protection in the event of an accident involving a negligent third party. Note that this coverage also protects members against underinsured drivers. It covers you and your household members up to the limits of your coverage and protects you every time you are injured by a negligent motorist. This protection applies whether you are the driver in the car involved, or just a passenger, and it also protects you if you are a pedestrian when hit by a negligent driver.

Uninsured motorist coverage can be purchased through your auto insurance, in which event it usually mirrors your liability limits. However, it can also be purchased through your homeowners’ insurance through an excess/umbrella policy with an auto/UM endorsement.

I wish you well.

SCOTT A. O’MARA

San Diego, CA 92130

Tel.: 858-481-5454 Fax: 858-720-9797

2370 5^th Ave., San Diego, CA 92101

Tel.: 619-239-9885 Fax: 619-239-3523

4049 Brockton Ave., Riverside, CA 92501

Tel.: 951-276-1199 Fax: 951-276-1485