In the Minniear case, the applicant sustained an admitted injury on March 17, 1994. He eventually treated with Dr. Burres, who performed surgery on the applicant’s back. Dr. Burres found the applicant permanent and stationary on January 4, 1995, and restricted him from heavy lifting, repeated bending and stooping.

The applicant’s attorney apparently disputed Dr. Burres’ report and obtained a report from Dr. David Wood. Dr. Wood found a restriction of no heavy work.

On May 21, 1996, the case was tried. The WCJ ultimately provided a Findings and Award based on the report of Dr. Wood. The defendants filed a Petition for Reconsideration, arguing that Dr. Burres’ report had a presumption which was not overcome.

The Board determined that Labor Code § 4062.9 affected the burden of proof, because it was part of an effort by the Legislature to implement a public policy of reducing medical-legal costs and expediting resolution of medically related issues by such means as restricting the number of medical evaluations. Although this Labor Code section appears to deal with only the level of permanent disability, the WCAB specifically found that it applies to all of the medical issues covered by Labor Code §§4061 and 4062.

The Board found that to rebut the treating physician’s finding, it is necessary to show a “more thorough qualified medical evaluator’s report” by making reference to “specific factors” in the context of the elements described in Board Rule 10606.

I have had applicant attorneys already cite the Minniear case for the proposition that the reports from the primary treating physicians are essentially bulletproof. However, I think that such an interpretation of the Minniear case is grossly in error. The Board specifically made reference to Board Rule 10606 regarding physicians’ reports as evidence. For the most part, this rule makes reference to everything that is needed to make up a medical report. In other words, the WCJ should consider whether the medical history contained within the treating physician’s report is correct. Consideration should be given to the diagnosis vis-a-vis work limitations, etc. If anything, the Minniear case makes it clear a greater burden is now placed on the WCJ to very carefully scrutinize the medical reports in question.

Late Payment Requiring Self-Imposed Penalty Does Not Necessarily Require Section 5814 Penalty on the Entire Species of Benefit

rank Morgan sustained an admitted work-related injury on June 9, 1993, while working for Service Systems Corporation. A Findings and Award issued which found the applicant permanently totally disabled. A second trial was held on March 14, 1996, on the issue of penalties.

It was not disputed that three permanent-disability checks were delayed. On two of the three checks, a 10% self-imposed penalty had been included in the payment.

The WCJ awarded one 10% penalty against the entire period of permanent disability and the defendant filed a Petition for Reconsideration, arguing that only a 10% self-imposed penalty should have been awarded on the one payment which did not include such a penalty.

The WCJ responded by stating that the penalty was for “the pattern of delay.” The penalty was to provide an incentive for the defendants to make timely payments of benefits in the future.

Service Systems Corporation v. WCAB, 61 CCC 1090.

EDITORS NOTE: The WCJ did state in this case that, “To this judge, there could be three penalties.” I don’t think three penalties would have been reasonable in this case. Obviously, the WCJ didn’t think that such penalties were reasonable, either, or he would have assessed them.

I think that this case can be argued to stand for the proposition that penalties on the entire species of benefits do not necessary follow automatically when there is a self-imposed 10% penalty. For one thing, a self-imposed penalty can be required when there is a delay as little as one day over the prescribed time when payments are due. Obviously, the WCJ looked at the bigger picture in this case. I think that this reflects the better position which is well-founded in equity and reason.

Future Medical Included Assistance with Activities of Daily Living and Child Care

pplicant Melody Yturralde sustained a work-related injury from hepatitis while working for Kaiser Foundation Hospital as a registered nurse and lab technician. A Findings and Award issued on April 6, 1991, awarding 8½% permanent disability. When the applicant’s condition deteriorated, a Petition to Reopen was filed. On February 20, 1996, Judge Bruce-Lyle found the applicant 100% disabled. The WCJ awarded future medical treatment to include home health care which would assist the applicant with activities of daily living, as well as child care. The defendants filed a Petition for Reconsideration, arguing, among other things, that future medical care does not include daily assistance in the applicant’s home with regard to activities of daily living, as well as child care. The defendant also argued that the WCJ should have retained jurisdiction over applicant’s permanent disability. The WCJ had refused this.

The Board agreed with the WCJ, noting that the applicant’s condition had deteriorated to the extent that she was unable to lift her children. The applicant had three children, including three-year-old twins. One of the twins, Michael, had cerebral palsy. The WCJ concluded: “This WCJ is of the opinion that the provision of daily assistance with activities of daily living and child care is medically necessary and reasonable in this case, and is supported by the medical and testimonial evidence.”

A Petition for Writ of Review was filed and it was denied on August 12, 1996.

Kaiser Foundation Hospital v. WCAB, 61 CCC 876.

“Employee’s Claim of Disability Discrimination Under Fair Employment and Housing Act (FEHA) Preempted by Labor Code §132a”

laintiff David Cammack sued General Telephone Corporation (GTE) for damages for unlawful disability discrimination under the FEHA. The plaintiff stated in his Complaint that while employed at GTE, he sustained an industrial injury, bilateral carpal tunnel syndrome. Due to the injury, the plaintiff became disabled. Later, he attempted to return to work before his “benefits had expired. . . .” He requested reasonable accommodation” at his work station. However, the employer “refused to provide any reasonable accommodation to plaintiff. . . .” When the plaintiff’s benefits expired on July 16, 1993, he was terminated. On June 21, 1994, the plaintiff received a right to sue letter from the United States Equal Employment Opportunity Commission.

The defendants filed a demurrer to the Plaintiff’s complaint, arguing that workers’ compensation provided the exclusive remedy for Plaintiff’s physical disabilityand the alleged discrimination. The demurrer was sustained without leave to amend. The plaintiff then filed an appeal.

The Court of Appeal noted that Labor Code §132a applies specifically to bias directed at the disabled arising out of a workers’ compensation claim. That was exactly the situation which existed in the present case. The plaintiff argued that the FEHA provides greater protection to employees who are discriminated against in the work place than does Labor Code §132a. As such, it was argued that the FEHA provisions preempted the Labor Code section provisions. The Court of Appeal did not accept this argument.

The Court of Appeal noted that in 1992, the Legislature amended the FEHA to accommodate provisions of the Americans With Disabilities Act of 1990. As part of the 1992 California legislation, Government Code §12933 was amended. Pursuant to this section, the plaintiff argued that the employer failed to provide “reasonable accommodations.”

The Court of Appeal held that the amendments to the Government Code did not repeal either Labor Code §132a or the preemptive effect of the Workers’ Compensation Act. The Court found that the type of discrimination alleged was specifically covered by Labor Code §132a. The Court stated that, despite the apparent public policy against physical-disability discrimination, the Legislature has, through Labor Code §132a, placed work-related-disability discrimination within the scope of the compensation bargain.

David Cammack v. GTE Corporation, et al., 61 CCC 760.

This is a particularly important case where there are overlapping issues about “reasonable accommodations” and Labor Code §132a. For all intents and purposes, this court has stated that Labor Code §132a eliminates the ADA issue. Whether or not federal courts similarly interpret the sections in question is yet to be seen.

For the time being, this case is good authority in arguing that the injured worker only has Labor Code §132a as his remedy.

hat is the idyllic way to spend your retirement years? Travel to all the exotic places you never had time to before? A beach home where the sun always shines? A cozy mountain retreat? However you picture it for yourself, it’s going to be a lot harder to achieve than it was for your parents’ generation.

With Social Security cuts and rising health care costs clouding the future, most Americans are worried about funding their retirement. But financial planners say that by sticking to one of a few simple strategies, you should be able to retire comfortably, or with a little luck, lavishly.

Your company’s retirement plans may be more than enough to feather your nest, especially if your firm offers a 401(k) plan. These plans allow you to deduct up to nearly $9,000 annually from your pre-tax income and place it in a managed investment fund. Often, matching funds are pitched in by your employer. Put away the maximum amount, and you could find yourself with $500,000 in savings after 25 years.

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A growing number of two-income families are tightening their belts for the future by undertaking to save or invest one spouse’s entire earnings. Doing so may require you to forego some luxuries in the present, but prudent investment of the “extra” income in savings plans, mutual funds, and insurance can pay off big in your golden years.