Wilson v. Cal Fire thread (California)

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Wilson v. Cal Fire thread (California)

Postby jobmdpsych on Thu May 16, 2019 7:05 am

Discuss.
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Re: Wilson v. Cal Fire thread (California) (California)

Postby jpod on Thu May 16, 2019 9:04 am

My main reaction was why the defendant felt this an appropriate case to litigate since it seemed pretty clear this was a catastrophic injury. It remains to be seen how litigants will run with this decision as now there is something more concrete to target/exploit.
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Re: Wilson v. Cal Fire thread (California)

Postby jobmdpsych on Thu May 16, 2019 2:27 pm

According the article:

The WCAB specifies that a number of factors, including but not limited to the following, may be relevant in making that determination:

1. The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve from the effects of the injury.

2. The ultimate outcome when the employee’s physical injury is permanent and stationary.

3. The severity of the physical injury and its impact on the employee’s ability to perform activities of daily living (ADLs).

4. Whether the physical injury is closely analogous to one of the injuries specified in the statute: loss of a limb, paralysis, severe burn, or severe head injury.

5. If the physical injury is an incurable and progressive disease.

Seems to me every surgical failed back or extremity injury that causes functional permanent loss would qualify. Five is actually the most stringent criterion since these failed ortho conditions are for the most part incurable at a certain point but not progressive beyond that. But 1-4 are very common.
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Re: Wilson v. Cal Fire thread (California)

Postby jpod on Fri May 17, 2019 8:03 am

I think this is just the starting off point for clarity and suspect it will take several years for the issue to be settled since the Court said It is a fact driven exercise which means it will take several different fact scenarios (or claims) to tease out what factors within a set of facts carry the day.
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Re: Wilson v. Cal Fire thread (California)

Postby vampireinthenight on Fri May 17, 2019 8:56 am

My analysis is that this is mostly useless. I did laugh at this part:

The focus in this subsection is consequently on the nature of the injury, rather than on the mechanism of
injury. This is illustrated by the specific types of injuries identified in the statute since they all focus on
the result of the injury: loss of a limb, paralysis, severe burn and a severe head injury represent particular
results from an industrial injury. Moreover, the Court of Appeal has previously specifically referred to
this subsection as creating an exception based on the “nature of the injury.” In Travelers Casualty &
Surety Co. v. Workers’ Comp. Appeals Bd. (Dreher) (2016) 246 Cal.App.4th 1101 [81 Cal.Comp.Cases
402], the Court of Appeal stated:
Had the Legislature intended to include the nature of the injury as a
factor in the definition of a sudden and extraordinary employment
condition, it knew how to do so. (See Lockheed Martin Corp. v. Workers’
WILSON, Kris 17 Comp. Appeals Bd. (2002) 96 Cal.App.4th 1237, 1245-1246 [117
Cal.Rptr.2d 865] [Legislature undoubtedly knows how to enact an
exception]; § 4660.1, subd. (c)(2)(B) [setting forth exception for
catastrophic injury].)
(Id. at p. 1108, emphasis added.)


This is a little tortured. I agree (sort of) with the nature of injury conclusion, but found it funny that they quote dicta from a COA opinion reversing the WCAB when it completely and obviously overreached on interpreting the "sudden and extraordinary" exceptions.

The opinion was odd. They basically went through a bunch of things that "catastrophic" can't be defined as and then sort of drops into a weird kind of default definition, as if everything else had been logically ruled out. Other uses of the term legally could have been fleshed out with much more research, but instead they simply looked at a couple other statutes in other codes, serving completely different purposes and then awkwardly segued into the next negative argument.

I remember ozzie ranting on here about looking at the substantial body of case law from other venues to reach a reasonable definition. But, as we predicted, the WCAB does not undertake any of that. It's going to be a while before we have ultimate definition.
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Re: Wilson v. Cal Fire thread (California)

Postby jpod on Fri May 17, 2019 9:58 am

Yeah, I could hear Ozzie's prior comments in my head while reading the decision. I wondered about why they did not look at insurance contracts which define catastrophic injuries. I assumed the defendant didn't raise that issue in their briefing and that is why the WCAB did not go there. It seems to always take a CoA decision to get a full vetting of an issue. That is why I think it will take years to get various fact scenarios up to the CoA to rule on the issue.
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Re: Wilson v. Cal Fire thread (California)

Postby jobmdpsych on Fri May 17, 2019 10:46 am

I think it's fair to say that a state that can't agree on the definition of a word is utterly incapable of building a bullet train, even though Japan did in 1963.

But I said that in 2012.
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Re: Wilson v. Cal Fire thread (California)

Postby steve appell on Sat May 18, 2019 2:03 pm

For better or worse …….I am going to bring up one issue which appears NOT TO have been considered by AA, the trial judge, or the WCAB. The applicant's skin was not severely burned, but his internal organs ABSOLUTELY were severely burned. So much that he was in a coma for 2 weeks.

What do ya think …. and of course ….LATE.
Steve

appellandassociates.com
6311 Van Nuys Bl #480
Van Nuys, Ca 91401
wcexaminer@aol.com


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Re: Wilson v. Cal Fire thread (California)

Postby jobmdpsych on Sat May 18, 2019 2:29 pm

One could possibly make the argument that a 2 week coma is worse than most head injuries, and therefore is analogous to a severe head trauma.

Just to put California's High Speed RR failure in perspective, Morocco finished one last year from Tangier to Casablanca that goes up to 200 mph. So all of us claiming that CAs government is third world including myself owe a sincere apology to third world countries that are actually advancing into the 21st century instead of regressing to 19th century problems like typhus. And to 14th century problems like bubonic plague.
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Re: Wilson v. Cal Fire thread (California)

Postby vampireinthenight on Mon May 20, 2019 8:25 am

Of course it will take a COA to define it in a way that serves the legislative intent in much clearer terms. I really really really wish decisions like this could work. I think a WC system that allows for wide trial judge discretion would be ideal. But let's face it, this en banc opinion will lead to a wash of cases pushing the envelope to absurdity (see 81 Cal.Comp.Cases 402 cited by the WCAB, the famous "sudden and extraordinary" event of slipping on a wet sidewalk). We will be tortured with both sides waving around a load of panel decisions in the air acting as if they are binding authority (which is how we practice now) and in a few years it will become so loud that a COA will be compelled to look at it.

The other interesting part I saw in this opinion is the ease in which the WCAB departs with the word "injury". It is sort of ironic how the WCAB has so adamantly and aggressively driven a hard wedge between "injury" and "disability" in the past, especially with apportionment issues. We've all seen the scolding opinions issued toward doctors, QMEs and litigants about how we must not confuse the totally distinct concepts of injury and disability. I have to have that discussion with clients all the time.

Of course, now we have an exception. Even though the statute quite clearly uses the exact term "injury", the WCAB seems to think it is obvious that the legislature really meant to insert the words "catastrophic injury or catastrophic effects resulting from industrial injury", even though, as the WCAB points out, the legislature could have easily done so if it wished. And... we are usually supposed to assume the legislature knows how the word "injury" has been applied in the past.

And, by the way, I have to point out that the "examples" from the code section, the loss of a limb, paralysis, severe burn and a severe head injury could very easily happen at the time of the injury event itself. To summarily conclude that these conditions can only represent "results" at some later point in time is logically incorrect.
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