July 2010

The Scope of Discovery in Psyche Claims is Broad

When an applicant raises psyche as an issue the defendant is entitled to ask all reasonable questions regarding the applicant’s history that might lead to the discovery of relevant evidence.  Eutsey v. City and County of San Francisco. A WCAB panel noted that by raising psyche as an issue, the applicant (not the employer) places his or her mental condition at issue in a case.  The panel overturned a Judge who sustained applicant’s attorney’s objection to questions regarding the applicant’s history going back more than 10 years before the date of injury.

The case involved a transit driver who claimed injury to her right leg.  As is increasingly common, her claim of injury was apparently amended to include psyche as a compensable consequence of that orthopedic injury, presumably to obtain a higher PD rating.  The employer’s attorney scheduled her deposition and after admonishing her that because of the psyche component of her claim the deposition questions would include inquiry into her personal and family life, the applicant stated that she nevertheless intended to pursue the psyche issue.  When defense counsel then asked a question regarding events going back some 24 years in time, applicant’s attorney objected and did not allow his client to answer.

The matter next went before a Judge at the WCAB in San Francisco who ruled that the applicant was not required to answer the questions to which her attorney had objected and that the deposition would not be rescheduled for further questioning.  The Judge also characterized the employer’s attorney’s conduct as “bullying and intimidation.”

The WCAB granted the employer’s Petition for Removal and overturned the Judge.  The panel noted that the scope of inquiry in a deposition involving a psyche claim is not limited to questions that would themselves elicit relevant or admissible evidence but instead includes all questions that could lead to the discovery of such evidence.

The Judge’s ruling was wrong because it appears to have been based on whether the answers to the specific questions posed would themselves have been relevant and admissible at hearing.  The panel also concluded that the Judge mischaracterized the defense attorney’s conduct.

The panel rescinded the Judge’s orders and remanded the case to allow for further deposition questioning, including questions regarding matters going back more than 10 years.

104-Week Cap Includes Out-Of-State TD

A WCAB panel found that the 104-week cap on TD benefits includes all types of TD caused by a single injury, such as TD-type payments made through another state’s workers’ compensation system.  Harris-Boyd v. Liberty Mutual Ins Co.

The case involved a flight attendant for Northwest Airlines who initiated her workers’ compensation claim in Michigan and received some TD-type benefits from the employer’s insurer pursuant to that claim.

The applicant later dismissed the Michigan claim and filed an application for adjudication of the claim in California.  At a hearing before a California workers’ compensation Judge the applicant admitted that she received the Michigan benefits.   The Judge nevertheless awarded an additional 104-weeks of TD for the same injury.

On reconsideration, the WCAB panel rescinded the Judge’s award and found that the out-of-state benefits count against the 104-week aggregate cap on TD benefits pursuant to Labor Code section 4656.  Those benefits are akin to salary continuation plans, which also count towards the aggregate amount of TD owed for each claim of injury.

15% PD Increase Does Not Apply to PTD

An employer did not send notice of an offer of regular or modified work to an injured worker who was permanently totally disabled.  The workers’ compensation judge increased the permanent total disability award weekly rate by 15% based on that lack of notice.

On reconsideration, a WCAB panel rescinded part of the award and ruled the 15% increase in weekly PD payments does not apply when a worker is totally disabled.  Rojas v. American Home Assurance Co.

The panel noted that there was no basis either in law or public policy that required an employer to offer a job to an applicant who admittedly cannot work in any capacity.

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