From the Desk of...

Illegal Immigration Status Does Not Give Additional Rehabilitation Rights

Undisclosed Evidence May Be Used After MSC If Necessary For Due Process

Labor Code §3212.2 Applies To Correctional Officers And Other Employees With Any Custodial Duties

Changes In Law

number of interesting cases have come by in the last few months. This issue contains a number of those cases. I direct the reader’s attention to the specific articles. However, just to highlight a few I will start with Del Taco vs. WCAB 65 CCC 342. This case does not stand for the proposition that immigration status can cause a loss of workers’ compensation benefits. It only stands for the proposition that the equal protection laws of the constitution preclude an employer paying more benefits to one worker over another merely because of the illegal status of the first worker.

Another case worth mentioning is that of John Kuykendall vs. WCAB 65 CCC 264. In the Kuykendall case the Court allowed the admission of previously undisclosed evidence obtained and submitted after the MSC as rebuttal to unanticipated testimony at trial. The Court stated that this was allowed when necessary to accomplish substantial justice. This is consistent with my editor’s note (Volume No. 6, Issue No. 1, March 2000, page 4) in the case of M/A ComPhi vs. WCAB (1998) 65 Cal. App. 4th 1020. I had stated in the editor’s note that to preclude valuable evidence which has impeachment value is to deprive that party of Due Process of law.

In closing, I would like to take this opportunity to congratulate Merle Rabine on his appointment as Chairman of the Workers’ Compensation Appeals Board. I know of no more knowledgeable of an individual of workers’ compensation law than Mr. Rabine. He gives true meaning to the phrase of gentleman and scholar.

Illegal Immigration Status Does Not Give Additional Rehabilitation Rights

orge Gutierrez injured his back while working for Del Taco. He was released to modified work the next day by his treating physician. A week later Del Taco discovered that Gutierrez had an invalid Social Security Number and was unauthorized to work in the United States. Because of this he was terminated from his employment. Del Taco would have kept Gutierrez in their employ had he been able to produce a valid Social Security Number.

Mr. Gutierrez filed for and received workers’ compensation benefits. He also applied for vocational rehabilitation benefits. The WCJ awarded benefits up to $16,000.00. This was appealed.

The Court of Appeal noted that Labor Code §3351 states specifically that “workers’ compensation laws apply to all employees whether lawfully or unlawfully employed, including aliens.” Therefore, Mr. Gutierrez would be entitled to TTD benefits and permanent disability benefits. However, with regards to the award of vocational rehabilitation it becomes an issue whether it is the workers’ disability that precludes him from working for the employer, or his immigration status. If it is only the immigration status which precludes the employee from continuing employment, then that employee is not entitled to rehabilitation. The Court stated, “We consider Del Taco’s contention that the WCAB vocational rehabilitation award deprives it of equal protection under the laws. It meritoriously argues that it will suffer what amounts to a potential $16,000.00 penalty only because worker cannot lawfully perform modified work. Here, Del Taco was obeying the law by not retaining worker after it learned that he was not legally permitted to reside or work in the United States of America. At the same time, worker was violating Federal law by remaining in the United State of America. Simple fairness dictates that Del Taco should not be penalized for obeying the law and worker should not be rewarded for disobeying the law.

A contrary determination would necessarily be predicated solely on illegal immigration status. This would not be equal protection for the “illegal worker” it would be more protection for the “illegal worker.” This would bear no relationship to “medical illegibility,” the extent of disability, or a need for retraining.

‘The equal protection clause [of the United States Constitution, 14th Amendment] requires that those similarly situated not be treated differently unless a disparity is justified.”

Therefore, the Appellate Court allowed Mr. Gutierrez to receive TTD benefits as well as permanent disability payments but precluded him from vocational rehabilitation because it was only his immigration status which was causing the need for the rehabilitation.

Del Taco vs. Workers’ Compensation Appeals Board 2000 Daily Journal D.A.R. 4109

It should be noted that the Court went to great lengths to explain that Mr. Guttierez was entitled to all of the workers’ compensation benefits any other worker would be entitled to regardless of his immigration status. The Court pointed out that the problem in Mr. Gutierrez’ case was that the employer would not have been obliged to pay for rehabilitation if they merely modified his job. All things being equal, Mr. Gutierrez would still be working for Del Taco. That is, except for his immigration status.

From an employer’s perspective it will be necessary to show that modified work was available within the work restrictions of the injured worker. It might be a good idea for an employer in this type of situation to go ahead and obtain a job analysis on the modified job available. They should then have their doctor review the job analysis on the modified job to insure that there is no question that their job would have been available to the injured worker but for their immigration status.

Undisclosed Evidence May Be Used After MSC If Necessary For Due Process

ohn Kuykendall requested additional workers’ compensation benefits from the Subsequent Injuries Fund (SIF). Mr. Kuykendall was subsequently awarded SIF benefits, but those benefits were to be “reduced by the extent of any monetary payments received by the employee, from any source whatsoever, for or on account of [a] pre-existing disability . . . provided by Labor Code §4753.”

The administrating agency who was State Compensation Insurance Fund (SCIF) for SIF. SCIF wrote Mr. Kuykendall informing him that it would not be paying any SIF benefits because of “excessive credits and debit accumulations.” Worksheets attached to the letter indicated that the agency was claiming an offset for the disability retirement compensation paid by Los Angeles County Employee’s Retirement Agency (LACERA).

The issue was disputed. It went to trial on the date of May 19, 1998. The worksheet in a letter from LACERA dated 1996 was entered into evidence. However, the applicant testified that when he had stopped working January 10, 1992, that it was due to neck pain, severe headaches, and right shoulder pain. Bear in mind, Mr. Kuykendall’s application for the SIF benefits was on the basis of his back and knee injuries. Mr. Kuykendall stated that he was not sure what body parts he listed on the disability retirement application he submitted to LACERA.

After the trial, the WCJ gave the parties additional time to file briefs after which time the matter was to stand submitted.

In his post-trial brief, the applicant argued that he was not granted disability retirement because of his prior back injury. Rather, the disability retirement was because of his neck and shoulder injuries as well as his headaches. In response SCIF provided copies of documents from LACERA which showed that the disability retirement was in fact granted in part due to the applicant’s back problems.

The WCJ then ruled that a credit equal to 25% of the applicant’s SCIF benefits were to be deducted. Thereafter, the applicant filed a Petition for Reconsideration. The applicant argued that the WCJ rendered a decision based upon inadmissible documents. The WCJ rescinded his order and filed a new findings and award providing no credit because it was his belief that he had reviewed inadmissible evidence.

This time SCIF filed a Petition for Reconsideration. The petition was granted by the Board. They reversed the WCJ. The Board stated that because the applicant testified that he did not remember what body parts he had put on the application, and because this was critical as to what credit was to be given, the WCJ had a duty to develop the record. The Board reinstated the original decision allowing a 25% credit of benefits being paid. The applicant then filed another Petition for Reconsideration.

The Board denied the Petition for Reconsideration. The applicant then filed a Petition for Writ of Review.

The Court of Appeal noted that the applicant argued that their supporting authority came from the cases of County of Sacramento vs. WCAB (Estrada) and San Bernardino Community Hospital vs. WCAB. However, both of those cases were distinguished. In the present case, the need for additional evidence only became apparent after the applicant testified that he did not remember what body parts he had listed on his application for disability retirement. In order to rebut unanticipated testimony, due process requires protection of a parties’ substantial rights. If an unaddressed an determinative issue arises during trial, it is proper for the WCJ to develop the record.

The Court of Appeal remanded the matter to the Board with instructions to allow the applicant additional testimony to offer in explanation to the information received from LACERA.

John Kuykendall vs. WCAB 65 CCC 264

This is a very important case for not only defendants, but for applicants. This stands for the proposition that some justice can be allowed at time of trial. The WCJ does have some discretion to allow due process. It was obvious in this case that the applicant was trying to take advantage of the situation. The WCJ’s first instincts were not to allow this. He only changed his decision when he felt constrained by existing case law. The Court of Appeal makes it clear that he was not so constrained.

The key is to first determine that the testimony given was unanticipated. The WCJ next needs to determine whether additional information is required for the protection of the due process rights of the parties.

Labor Code §3212.2 Applies To Correctional Officers And Other Employees With Any Custodial Duties

A Petition for Reconsideration was filed. The petition was denied. A Petition for Writ of Review was filed with the Court of Appeal. That petition was granted.

The Court of Appeal held that Section 3212.2 had to be literally interpreted. The Court held that any officers or employees of CDC having any custodial duties were subject to §3212.2. Accordingly, CDC had the burden to prove that Mr. Reeves’ heart trouble did not arise out or in the course of employment. Since the WCJ misapplied the presumption, the finding of no injury was annulled. The case was remanded for further proceedings.

Loren Reeves vs. WCAB 2000 Daily Journal D.A.R. 4255 (April 26, 2000)

The Court of Appeal’s literal interpretation of Labor Code §3212.2 gives very broad application to that section. If any CDC employee has any type of custodial duties, the presumption of industrial injury apply to their heart claims. It does not make any difference if the “custodial duties” were only a minor part of that employee’s overall duties. One can only wonder if the Legislature envisioned such a broad application of this labor code section.

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.