While there are still a number of the lien claims in the system which relate to the earlier debacle, most of the workers’ compensation claims themselves are questions of nature and extent, not of AOE/COE.

However, it is my personal impression that we are now entering into a time when a number of bogus claims are coming back. Certainly they are not coming back in the numbers that existed before, but I am at least seeing more cases where AOE/COE is the main issue.

Where AOE/COE is the concern, impeachment is usually the byword. While AOE/COE can be a medical dispute, it is more often a factual dispute. If you accept that the applicant in fact sustained an injury for which he is hurting, then the medical reports follow whichever facts apply. The key is to determine the correct set of facts.

Competent defense counsel should do an exhaustive review of all of the medical records available. He or she should very carefully review the medical reports. Almost without a doubt, a deposition will be taken.

If any witnesses are available, most certainly they will have been interviewed. If the matter actually proceeds to trial, the witnesses should be placed under subpoena and made available to testify.

Impeaching an individual’s testimony is as much an art as it is a reflection of a lot of work. Most of the defense attorney’s impeachment will reflect a careful and thorough review of his/her file. The other part will reflect careful thought and consideration as to what the applicant will testify to.

If you are dealing with a liar, they will have no compunction in changing facts to their advantage. Obviously, the deposition is most important in determining what the applicant’s testimony is anticipated to be. If the applicant deviates from his deposition, you can impeach the applicant with that recorded testimony.

Another source of impeachment evidence are the medical reports prepared by the doctors who have examined the applicant. Usually the doctors take a history of the injury. If the applicant’s testimony differs significantly from this history of injury, this discrepancy should be brought up at time of trial. While the applicant will usually state that the doctor “just got it wrong”, if a number of the doctors have “gotten it wrong” as well, this will bring into question the applicant’s credibility.

Personally, I find it most helpful to have the expected impeachment evidence written out with an indication of where the information came from. Next to that, I will leave a large open box which I place a check in once the impeachment evidence is introduced at time of trial.

When I use deposition booklets, I prepare a summary where I have the page and line numbers listed next to a brief description of the applicant’s testimony. Most workers’ compensation judges expect that if you have impeachment information, that you will have it immediately available at time of trial. One thing that you don’t want to do is to start thumbing through a deposition booklet to find a statement that you vaguely remember the applicant saying. This is another reason why you should have reviewed the deposition booklet very carefully before the trial. You should also have outlined those areas that you think will constitute impeachment evidence.

Finally, you will use your designated witnesses to impeach the applicant’s testimony. Sometimes this is all you really have. Make sure of what the witnesses are going to testify to. You certainly don’t want to call a witness who will actually hurt your position.

“§5402 Does Not Apply to Cases Where the Parties Obtain AME Reports”

aymond Mitchell was involved in a traffic accident on his way home from work on February 23, 1990. The accident was caused by an epileptic seizure which Mr. Mitchell had. Mr. Mitchell was severely injured and did not return to work after the accident.

Mr. Mitchell filed for workers’ compensation benefits on March 16, 1990 alleging that the epileptic seizure was caused by work-related stress. Additional claims were filed on March 27, 1990, alleging a continuous trauma claim from January of 1989 through February 23, 1990. This injury was to the applicant’s internal system.

On May 15, 1990, the defendant issued a denial of the applicant’s claim. The denial apparently covered both claims. The defendant noted that the cause of the accident was low levels of seizure-controlling medication in Mr. Mitchell’s system at the time.

Mr. Mitchell died as a result of his epilepsy on December 23, 1990. Mr. Mitchell’s widow filed a death claim including a new claim for continuous trauma dating from January of 1989 through the date of the applicant’s death. The new claim alleged that the applicant’s death was due to the stress at work which aggravated the epilepsy condition. The new claim was filed on September 27, 1991. No denial issued from the defendant.

The applicant obtained a medical report from a Dr. Baker who found that the work-related stress aggravated the epilepsy condition and caused Mr. Mitchell’s death. Sometime later, the parties agree to use Dr. Nancy Sajben as an AME. Dr. Sajben issued a report which found that Mr. Mitchell’s death was not work-related.

The case came before Judge Barry R. Goldman. Judge Goldman found in favor of the defendant. The widow filed a Petition for Reconsideration. Among other things, it was argued that Labor Code §5402 applied. Since the claim filed by the widow had not been denied within ninety days, there was a presumption of compensability. Judge Goldman replied that the presumption was not applicable because the AME report was not available during the 90-day period after the claim was filed. The WCJ also found more than ample evidence to find no industrial injury based upon the AME report. A writ denied issued.

Raymond Mitchell v. WCAB 60 CCC 517

Editor’s Note: It must remembered that this is a writ denied case. It is always dangerous to read into a writ denied case more than what there actually is. I have cited this case for the proposition that §5402 does not apply to cases where the parties obtain AME reports. However, we only have the arguments of the WCJ. The reasoning would appear to be valid. However, I have little doubt that this theory will continue to be challenged by applicant’s counsel until we have an opinion from the Court of Appeal.

I also think that the defendants could have argued that the second continuous trauma was merely an amendment to the first continuous trauma. While better form would have required a denial to the amended continuous trauma claim, once a claim is denied, I think that it is denied. I don’t think that an amendment actually revives it, per se. The continuous trauma claim made by the widow appears to me to actually duplicate the continuous trauma claim actually filed by Mr. Mitchell. At best, her additional claim would have been considered an amendment to his earlier claim, which was denied.

“Elizonodo Requires a Good Faith Request for Rehabilitation Benefits”

pplicant, Celia Lucero, sustained an admitted right knee injury on September 19, 1989. She claimed an additional injury to her left knee. The applicant requested rehabilitation benefits.

The issue of whether rehabilitation benefits were owed went to the Rehabilitation Unit. The Unit ordered the VRTD benefits based upon a prima facie showing that the applicant was unable to perform her usual and customary work. The employer was ordered to pay benefits while the dispute was under consideration.

In the interim, the parties agreed to use Dr. David Chittenden as an AME. Dr. Chittenden was initially of the opinion that the applicant’s right knee disability gave the applicant a disability of a preclusion between categories C & D of the guidelines for work capacity. However, after the defendants showed the AME the sub-rosa film of the applicant, Dr. Chittenden revised his opinion. The doctor concluded that the applicant was exaggerating her symptomology, and that her work preclusion was category B, at best. The applicant could do her usual and customary work if she chose to do so. The applicant’s treating physician had previously released the applicant to work full duties.

Based upon the medical opinions of the AME and the treating physician, the Rehabilitation Unit found that the applicant was not a Qualified Injured Worker. However, the Unit did order VRTD benefits for the period in dispute from May 28, 1991 through April 2, 1993. The employer appealed the Award. The employer argued that the applicant had not requested rehabilitation benefits in good faith since she had been released to work by her treating physician and was found to be exaggerating her complaints.

The WCJ reviewed the medical records. Based upon the evidence, the WCJ reversed the Rehabilitation Unit’s order of retroactive benefits. The request for benefits was not made in good faith. A Petition for Reconsideration was filed. The Board followed the WCJ’s opinion. The Petition for Writ of Review has been filed. This was denied.

Celia Lucero v. WCAB, 60 CCC 513

Editor’s Note: There are very few times that a defendant or employer will be able to defeat the ongoing obligation for rehabilitation benefits when there is a prima facie showing that a person cannot do their usual and customary work. Both parties argued that Industrial Indemnity Company v. WCAB (Elizondo) 50 CCC 171, supported their position. Generally the Elizondo case stands for the proposition that rehabilitation benefits are owed from the date that there is a prima facie showing for the needed benefits. However, in this case, the defendant was successful in arguing that the Elizondo case, of necessity, requires that there is a good faith request for rehabilitation benefits.

I think that it is important to note that the applicant was ultimately found not to be a Qualified Injured Worker by her treating physician. If this had not been the case, this case may very well have had different results.