The Art of Law

The Department of Industrial Relations posted an informational Power Point Presentation on its website regarding an Employer’s duty to return an injured worker to work.

According to the presentation, below is a list of some the most common company policies that can lead to possible liability under both the Fair Employment Housing Act and Labor Code Section 132(a).

• “Our company has a policy that modified work is not offered after 90 days …”

• “Our company has a policy that we do not offer permanent modified work.”

• “Our company has a policy that an [injured worker] must be released to return to full duty
before he/she can be reinstated.”

• “Our company has a policy that the [injured worker] must be 100% before returning to work.”

• “The injured employee has been declared
permanent & stationary and still cannot perform
his former job.”

It should be noted that an Employer of 50 or more employees has a duty under FEHA to engage in the interactive process to return an injured worker to work. Further, a workers’ compensation judge makes a finding whether an Employer timely offered modified or alternative work in determining the value of an award of permanent disability. If a workers’ compensation judge finds an employer failed to offer modified or alternative work, this finding can bind the Employer in a subsequent FEHA action.

The Workers’ Compensation Appeals Board (“WCAB”) recently issued an En Banc opinion that reaffirms judicial principals of equity are to be used in determining the amount of permanent disability benefits an injured worker is to receive. The essence of this decision is to inject into the rating process basic principles of “equity.” A very simplistic overly broad definition of the principles of equity is it gives the power to the administrative law judge to define and grant fair relief.

The WCAB is an administrative adjudicating body which interprets the law, make findings of fact, and award workers’ compensation benefits. To invoke the powers of the Board, a party files an Application. An “application” in judicial proceedings is filed for routine matters which are normally presumed to be granted. There is a presumption in the California Workers’ Compensation System the employer is to provide a continuous flow of benefits to an injured worker in exchange for lower compensation.

The legislature has created a cookie cutter system to provide benefits to injured workers. There is another presumption the benefits defined in the cookie cutter are correct. The burden is placed on the party challenging the cookie cutter to prove the benefits it seeks or denies are not reasonable or “fair.”

For medical benefits, a carrier must provide treatment as defined in the ACOEM Guidelines. The burden of proof is on the injured worker to show the carrier has the responsibility of providing treatment outside these guides.

Similar, the legislature has created a cookie cutter approach to determining an injured workers’ level of permanent disability. This requires a two step process. First a doctor examines the injured worker. He opines his/her objective and subjective level of disability based on a medical treatise called the AMA Guides. This level of disability is called a “Whole Person Impairment.”

The second step applies a formula developed by the Department of Industrial Relations to determine the monetary value of the injury. The formula is based on a Rand study and uses factors such as: age, job description, and nature of injury to increase or decrease compensation based on the Whole Person Impairment. This new decision allows an injured worker or employer to present evidence to redefine the cookie cutter definitions within the AMA Guides.

In the Alamarez decision, all seven of the Administrative Law Commissioners stated in agreement that:

“[t]he AMA Guides portion of the 2005 Schedule is rebuttable; (2) the AMA Guides portion of the 2005 Schedule is rebutted by showing that an impairment rating based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability; and (3) when an impairment rating based on the AMA Guides has been rebutted, the WCAB may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides.”

Further, they state:

“Because the “whole person impairment percentages listed in the Guides estimate the impact of the impairment on the individual’s overall ability to perform activities of daily living, excluding work” (AMA Guides’ emphasis), and because many of the [Activates of Daily Living] addressed by the AMA Guides have limited or no bearing on work activities, the AMA Guides itself recognizes that, at least in some cases, it is appropriate to depart from an industrial impairment rating based strictly upon the Guides.”

The Commissioners went on to hold, “that an impairment rating strictly based on the AMA Guides is rebutted by showing that such an impairment rating would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability.“

In other words, if the physician believes an injuries impact on an injured workers’ ability to work is not reflected accurately by the level of permanent disability under the AMA Guides, the physician can opine an equitable level of Whole Person Impairment. The basis of the physician’s opinion will be the evidence presented by the parties (attorneys). Both injured workers and employers will use this decision to challenge the presumption of the AMA Guides.

This decision will most likely have the greatest impact on spinal and upper extremity injuries. Disability for these types of injuries is often caused by subjective pain. The cookie cutter approach places little weight on an injured workers’ subjective complaints of pain. Strict application of the AMA Guides often results in a low level of permanent disability. Thus, it is common for injured workers’ to feel the level of disability opined by the physician based on a strict interpretation of the AMA Gudies does not adequately compensate them for back and neck injuries

Similar, upper extremity injuries to often have an effect on grip strength. Grip strength ratings are often based on an injured workers’ ability to handle pain. A strict reading of the AMA Guides limits the use of grip strength loss in the ratings process. However, Almarez encourages doctors to opine, “an impairment opinion that is not based on a strict application of the AMA Guides.” Further, it allows physicians to “consider a wide variety of medical and non-medical information.” Thus, the ratings opined by the physicians will go beyond the mechanical application of the cookie cutter and be based on their opinion of “fair.” This includes their subjective belief regarding the Applicant’s physical capabilities.

The San Diego Union Tribune’s recent article Analysis: Downtown Juries lack Latinos alleges: “The system for summoning jurors in San Diego is so flawed that one of every two eligible Latino jurors is never called to serve on a jury downtown… .”

Based on population statistics, the researchers expected that 19% of jurors would be Hispanic. However, of the 4,241 Jury surveys collected, only 9.6% of the jurors declared themselves Hispanic. The conclusion that can be drawn from the data is that on average there was one Hispanic juror instead of two on every 12 person jury. However, there is still Hispanic representation on every jury.

The article goes on to explain the researchers belief that the reason for the discrepancy is because too many jurors are dropped from a master list. The master list is created when a company that contracts with the court, “strike[s] out duplicate names, names of people who have died or who are permanently excused. … The Court also uses ZIP codes to determine which courthouse a juror is supposed to report to.”

The court system is continuously challenged with the question of how to assure representation by the people for the people. It is asked to answer the questions of whether voting districts, school populations and jury make-up accurately reflects the demographics of the represented population. The U.S. Supreme Court interprets the Constitution as requiring the government to prove that any racial classification is necessary to achieve a compelling governmental purpose. In other words, the government must have an extremely important reason and there must be no less discriminatory alternative.

Interestingly, when the rationale for a law is based on wealth, the law must only meet the less burdensome rational basis test. In San Antonio School District v. Rodriguez, Rodriguez alleged that poorer neighborhoods had a higher tax burden while its schools still did not have the same resources as richer neighborhoods. The U.S. Supreme Court held 5 to 4 the State of Texas’ system of paying for schools with property taxes which resulted in economic discrimination was constitutional.

Often times, the starting point of litigation is a study showing the law has a disparate impact on a particular race. However, a law that has a discriminatory impact on a particular race does not need to pass the strict test unless there is proof of a discriminatory purpose.

If the data is correct, then the jury pool is not representative of the local community. Zip codes are tied to neighborhoods. Neighborhoods are tied to class. If one of the main factors in selecting jurors is their zip code, then it will be interesting to see how the Court frames the issue in this case. Will it decide this is a matter of wealth discrimination or is it race discrimination? The ultimate question is how will it define a jury by your peers. Of course, there is also a possibility the court will find allegations to be a non-issue.

The Press Democrat reports on January 9, 2009 the County of Mendocino is attempting to regulate a substance that is illegal under Federal Law. Of course, one has to ask the question how a local government can regulate an illegal substance?

The article titled states the County Board of Supervisors “believes that normalizing legitimate growing of medical marijuana for the benefit not only of patient-growers, collectives and cooperatives but also for the county is overdue,” However, a recent California Supreme Court Case questions the legality of cooperatives and collectives.

There is a legal remedy to these problems which does not place the County in the position of regulating an illegal industry. Under the common law, persons in possession of real property are entitled to the quiet enjoyment of their lands. If a neighbor interferes with that quiet enjoyment, either by creating smells or any hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance. See http://en.wikipedia.org/wiki/Nuisance.

The California State Legislature has codified the a definition of Nuisance in Civil Code Section 3479. It has declared “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, … is a nuisance.” Under theories of both public and private nuisance recovery, the prosecuting party may be entitled to injunctive relief, damages, attorney’s fees and costs.

The question that arises is whether large amounts of medical marijuana grown in residential neighborhoods constitutes a nuisance. Based on a nuisance theory, both local government and the effected neighbors have a remedy. However, this remedy does not give local government the excuse to create a complex regulatory scheme which creates additional levels of bureaucracy that fails the common sense test.

The Santa Rosa Press Democrat and Law.com have both ran stories on the real world ramifications of making online statements. The moral of both these stories is if you don’t want the rest of the world to know your thoughts, don’t type them.

New Jersey state law requires health insurance companies to cover mental illness only if it is biologically based. Law.Com reports in its February 1, 2008 article titled “MySpace, Facebook Pages Key to Dispute Over Insurance Coverage for Eating Disorders” that Horizon Blue Cross Blue Shield is being sued by multiple plaintiffs for denying health coverage to teenage girls with eating disorders.

The insurance carrier alleges the eating disorders were cause by environmental factors. It alleges the girls’ online writings provide proof the eating disorders were not biological. Consequently, it has made formal discovery requests for copies of the girls’ MySpace and Facebook

The Santa Rosa Press Democrat provides a summary of the core issue. “’ The pressure is insane for girls, to be exhibitionists. The whole point of MySpace is to establish a celebrity stature, to accumulate as many friends as possible for people to view your page and rate it.’” “Some teens post bulletins filled with inflammatory rhetoric or rewrite their profiles to say what it is they don’t like about someone else. … This can lead to unintended consequences.” (Teens pushing boundaries of Privacy, Santa Rosa Press Democarat, 2/1/2008). In other words, the teens are spewing raw emotion and fantasies to create a false popularity. The question that arises is how much of the illusion of a mentally ill teenager can be used as evidence in a court of law?

Unfortunately, any statement or action made on the internet may possible be used as evidence in a court proceeding. In a recent defamation case, the Electronic Frontier Foundation (“EFF”) opposed a subpoena requesting all Google records of an anonymious blogger. One of the basis of the objection was the subpoena was overly broad since any response would include all of the users Google searches.

The ramifications of making statements on the internet are not limited to possible Court proceedings. Once you type something in your computer, there is a record of your statement. Word processors such as Word and Wordperfect auto save and web browsers create caches that are next to impossible to erase. Further, web companies save information to be data mined for “marketing” purposes. The bottom line is people need to think before they text message, blog, or type.