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Employers urged to watch language in workers comp coverage disputes


ANAHEIM, Calif. —Three key cases this year have California workers compensation legal experts warning employers to beware of the nuances and language in the resolution of cases.

With two major comp reforms pending — S.B. 899 and S.B. 863 — “commissioners are inundated with work, so there are many times that cases will turn on a word, a phrase or a nuance,” Jeffrey E. D'Andre, Oakland, California-based partner in D'Andre, Peterson, Bobus & Rosenberg L.L.P., specialists in the defense of employers and insurance companies in workers comp cases, said Thursday at the 2016 California Coalition on Workers' Compensation Conference in Anaheim, California.

He gave one such example: Travelers Casualty & Surety Co. et al. v. Workers' Compensation Appeals Board and Mark Dreher, a case that involves a maintenance man in an apartment complex who fell on the sidewalk when it was raining and fractured his pelvis, resulting in multiple hip surgeries. The appeals court ruled in favor of the employer.

“This was not, in that event, a typical slip and fall,” Mr. D'Andre said. The WCAB, however, decided it was, he said, but the California 1st Court of Appeal said it was not a sudden and extraordinary event.

“I think the board viewed this as using the severity of the injury as part of the analysis, but the court of appeals removed that, as this event occurred during a routine activity,” he said.

Another workers compensation case, Larsen v. Securitas Security Services, similarly turned on the interpretation of a word, Mr. D'Andre said. A security guard was struck by a car backing out of a parking space while she was walking in a parking lot at her worksite. The car hit her, causing her to fall, hit her head and lose consciousness. The security guard said that she was a victim of a violent act and thus entitled to increased compensation, Mr. D'Andre said.

The court used the dictionary definition for only one of the three words, “violent,” without considering the difference between an act and an event, said Raymond Frost, a workers compensation attorney based in Fremont, California.

“I think this is an event — an act is intentional, caused by some person or object, but the court looked up the word violent and used the definition of 'strong physical force' and so (the plaintiff in) this case was determined to be a victim of a violent act,” Mr. D'Andre said, in the ruling that favored the security guard.

Mr. D'Andre also discussed Amanda Guerra et al. v. Workers' Compensation Appeals Board and Porcini Inc., et al., also known as the Rodas case, a previous case published on April 27, 2016. A restaurant worker Carlos Ivan Rodas, who had a life history of tuberculosis that compromised his breathing, according to Mr. D'Andre, was found dead by the dumpster at his workplace. He had presumably taken a trashcan out to the dumpster when he collapsed, and the judge found this compensable based upon no evidence, Mr D'Andre said. The medical examiner attributed his death to a lung rupture that could have been caused by the physical activity of wheeling the trashcan out or lifting it or simply its foul smell. However, because these are assumptions, the board overruled a judge's decision that this injury was employment related. The case has gone to the 2nd District U.S. Court of Appeals, Mr. D'Andre said, where it is pending.

This case sets an interesting standard for all non-witnessed, non-specific injuries, said Mr. Frost, “in that it gives the trial court and the board a lot of latitude to create inferences from the facts.”

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