From the Desk of...

Definition of Power Press

Stipulation To Be Set Aside For Good Cause Only

Hearing Representative Entitled To Reduced 5710 Fees

Changes In Law

The applicant objected to Dr. Glousman’s P&S opinion. The employer then sent the applicant notification of her right to select from a three physician panel. However, the applicant instead obtained the services of an attorney. The attorney referred the applicant to Dr. Stokes. Dr. Stokes immediately began treating the applicant. Five months later Dr. Stokes provided his own P&S report.

The matter went to hearing with both sides claiming the presumption of correctness. The WCJ reasoned that Dr. Stokes was the primary treating physician because Dr. Glousman stated that the applicant required future medical treatment. A Petition for Reconsideration was filed but was denied. The employer then filed a Petition for Writ of Review. The Court of Appeal reversed the Board and the WCJ.

The Court of Appeal found the Administrative Rule §9785 provides that an injured employee is entitled to change treating doctors until the primary treating doctor “discharges” that worker. Although Dr. Glousman did not use the term “discharge” under the facts as presented the applicant was discharged and was therefore precluded from seeking treatment with Dr. Stokes. Dr. Glousman’s opinion that in all reasonable medical probability the applicant would have flare-ups requiring medical attention in the future, did not alter the fact that ongoing medical treatment had been terminated. The WCAB’s decision was annulled. The matter was remanded for further proceedings.

This case is critical for the defendants. On those few cases where the defendants have a P&S treating doctor’s report, it has been my experience that the applicant’s representative immediately designates a different treating doctor. The new doctor proceeds to treat the applicant as if there was no P&S report. Thereafter, they do their own P&S report which presumably is the “real” doctor’s report carrying the presumption of correctness. However, the Tenet/Centinela Hospital Medical Center case has found such an action incorrect if the applicant has been “discharged” by the first treating doctor. The key is to determine whether or not the applicant was found permanent and stationary and discharged from immediate care. If there has been such a discharge, then the applicant must comply with Labor Code §4061 and §4062 and attempt to use an AME.

Definition of Power Press

Mr. Rosales’ hand was injured by the v-notching tool while it was in operation or being brought into operation. The lathe’s safety sensor, which was designed to prevent operation when the door was open, had been intentionally disabled.

Mr. Rosales sued his employer under Labor Code §4558 which provides,“An employee...may bring an action at law for damages against the employer where the employees injury...is proximately caused by the employer’s knowing removal of...a point of operation guard on a power press....”

The Superior Court granted the defendant’s Motion for Summary Judgment and dismissed the cause of action stating that the tool in question was not a power press as defined in the labor code. The Court of Appeal reversed the Superior Court. An Appeal then was made to the California Supreme Court.

Although the parties had settled their case a few days before oral argument was scheduled, the California Supreme Court reviewed the facts and provided their ruling. The court held to the very narrow interpretation of what constitutes a power press. They essentially held to a dictionary definition. They found that the tool had to be a “material-forming-machine, i.e., the use of a tool that imparts shape to material by pressing or impacting against or through the material, that is, by punching, stamping or extruding.” In the case at hand the v-notching tool was found not to be a dye, and therefore not covered under Labor Code §4558.

2000 Daily Journal DAR 1451 Hector Rosales vs. Depuy Ace Medical Company.

Justice Mosk wrote a dissenting opinion. He chided the majority for using a dictionary in guiding them to their conclusion. He felt that the Summary Judgment Motion should have failed. He would have sent the matter to a jury for decision. In other words Justice Mosk would have allowed a very broad interpretation of what was a power press.

Stipulation To Be Set Aside For Good Cause Only

A mandatory settlement conference was held on July 5, 1996. The parties entered into the following stipulation: “No cumulative trauma claim has been asserted for the March 16, 1991, massive heart attack which was claimed as a specific injury, nor has a cumulative trauma claim been asserted for the March 27, 1991, death for which an employee’s claim for workers’ compensation benefits was filed on June 14, 1995.”

The matter went to trial. The WCJ found no industrial injury due to a specific job injury. The applicant filed a petition for reconsideration. The Board granted the reconsideration and remanded the matter back to the WCJ. The Board instructed the WCJ to determine whether or not there was sufficient evidence to support the parties’ stipulation. On remand, the WCJ found that there was not. He then found in favor of the applicant.

A petition for reconsideration was filed. The petition was denied. A petition for writ of review was then filed. The Court of Appeal granted the petition.

The Court of Appeal conceded that the Board has the discretion to reject factual stipulations. They cited Labor Code §4702, as well as the case of Frankfurt General Insurance Company vs. Pillsbury (1916) 173 Cal. 56. However, they went on to state that they were unaware of any statute permitting the Board to reject a stipulation clarifying whether a specific injury existed, or a continuous trauma existed, absent finding of good cause. Good cause would include inadvertence and/or mistake of fact.

The Court stated that the record was devoid of any reason why the client should not be held to the stipulation. There was no showing that the stipulation had been entered into through inadvertence or mistake of fact. The Court reversed the Board’s decision. They remanded the matter back to the WCJ with instructions to consider the issue of good cause for setting aside the stipulation. 2000 D.A.R. 1075 (January 28, 2000).

The Court discusses the fact that the applicant was in pro per when she filled out the claim form. The Court notes that although the applicant may not have properly filled out the claim form, it was her attorney’s duty to identify those mistakes which needed to be remedied. Any failure to “clean up” these mistakes by the time of the MSC was the attorney’s fault. The Court stated that if it appears that the attorney was negligent in the matter the client’s remedy is against him personally.

In this particular case, it was apparent that a very significant error was made at time of the MSC by the applicant’s attorney. Apparently, there was sufficient evidence to support findings of a continuous trauma claim. For whatever reason, the attorney stipulated that there was no continuous trauma claim.

The Board had read Administrative Rule §10492, which provided that the pleadings may be amended by the Board to conform to proof. The Board was of the opinion that all it had to do was to give the parties notice and an opportunity to present evidence when the Board was going to make a finding contrary to a stipulation of the parties. The Appellate Court did not disagree that the Board could amend the stipulation of parties. The Court noted that the effect of the Board’s remand was to invite the WCJ to vacate the stipulation if it was bad for the worker. The Court stated that this is not the appropriate standard by which a stipulation should be set aside. In an ordinary civil case, it is within the discretion of the trial court to disregard a stipulation that has been entered into through inadvertence or mistake of fact. The Court of Appeal stated that the WCJ and Workers’ Compensation Appeals Board must abide by the same standard. The effect of this is to make it clear that the MSC is a critical time. All issues must be very carefully drafted and reviewed. Cases can be either won or lost based upon these stipulations.

Hearing Representative Entitled To Reduced 5710 Fees

The WCJ signed an award allowing the attorney’s fee subject to written objection within 20 days. An objection was made on the basis that $80.00 an hour was more than reasonable to compensate a non-attorney.

The parties went to trial on the issue of 5710 fees, public benefits paid, discrimination, and S&W conduct. The applicant’s deposition was not submitted into evidence. Thereafter, the WCJ awarded 5710 fees at the hourly rate of approximately $163.00. A Petition for Reconsideration was filed. The petition was denied. A Petition for Writ of Review was then filed.

The Court of Appeal quoted WCJ Pamela Foust regarding the issue of 5710 fees. Judge Foust gave the opinion that if a non-attorney appears at a deposition who is an employee of the attorney of record, the deponent is still represented by an attorney of record. Allowing a fee in this situation is proper, although a lesser amount is merited dependent upon the non-employee’s qualifications and level of expertise. The Court of Appeal then noted that the deposition was not entered into evidence. There was also no evidence as to the expertise of the hearing representative. As such the Order was vacated. The matter was then remanded to the WCJ for further proceedings. Presumably the WCJ would take additional evidence regarding the expertise of the hearing representative who sat in on the applicant’s deposition.

99 Cents Only Stores vs. WCAB 2000 Daily Journal D.A.R. 4699 (May 5, 2000)

The law firm’s original request for 5710 fees was at the rate of $125.00. The defendant, while objecting to the $125.00 per hour request, had argued that $80.00 per hour was more than reasonable. Under those circumstances, it is quite surprising to see that the WCJ awarded at the rate of approximately $163.00 per hour.

Hearing representatives do not have to spend any time in law school. They do not have to pay any bar fees. They do not have any mandatory continuing education requirements. Further, if they are working for a law firm they have to be under the supervision of an attorney. It makes no sense whatsoever that they would be entitled to the same amount as a licensed attorney would be entitled to.

Changes In Law

Changes are to Labor Code §96(k), §139(a)(b), §3212.1(a)(b)(c)(d)(e), §3700.5, §3702.5, §3762 (a)(b)(c)(1)(2), §4600.5, §4603.2(a)(b), §4850, §4850.5, and §5433. There are also a couple of changes to Administrative Rules 9785.2 & 9785.3 and 9700 through 9704.