August 2010

Managers and Supervisors Can Attend Psyche Depositions

A WCAB panel affirmed the right of employer representatives to be present at depositions in psyche injury claims.  In a recent panel decision, the WCAB held that a claimant’s direct manager or supervisor can attend the applicant’s deposition, as opposed to someone from Human Resources or Risk Management.  Padilla v. Los Angeles Metropolitan Transportation Authority.

The workers’ compensation judge in the case issued a protective order at applicant’s request, ruling that only a representative from HR or claims management could attend the applicant’s deposition.  Essentially, the judge allowed the applicant to choose the employer representative in his case.

Applicant’s attorney argued that the applicant felt uncomfortable testifying about his psychiatric condition while the applicant’s manager was in the room.  The defense argued, in part, that the applicant’s direct supervisor was in the best position to observe the applicant’s testimony and assess his credibility.  The judge agreed with the applicant but the WCAB overturned that ruling, reaffirming the employer’s right to choose its own representative.

This case follows another recent WCAB ruling stating the defendant in a psyche claim is entitled to ask all reasonable questions regarding an applicant’s history that might lead to the discovery of relevant evidence.  Eutsey v. City and County of San Francisco. The WCAB panel in that case noted that by raising psyche as an issue, the applicant (not the employer) places his or her mental condition at issue.

In the Eutsey 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 WCAB 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.

Read together, the Padilla and Eutsey cases confirm the right of an employer representative to be present at psyche depositions, including direct supervisors, and further confirm the scope of deposition questioning to include all matters that might lead to the discovery of relevant evidence, including matters going back more than 10 years.

Benson Apportionment is Watered-Down

A WCAB panel awarded a combined 37% PD rating without apportionment between the two separate cumulative trauma injuries.  Cocio v. Mountain View School District.

The case involved a food service worker who sustained two cumulative trauma umbilical hernia injuries.  Panel QME Jonathan Ng evaluated her.  At his deposition, the QME was asked to apportion between the two injuries in accordance with the Benson case.  However, the QME failed to apportion, testifying that to do so would be speculative.  Apparently, there was no referral to another physician better able to make that determination, as is allowed under the Labor Code.  At trial, the Judge awarded the full 37% PD without apportionment between the injuries.

On reconsideration, the WCAB panel upheld the judge, noting that the Benson case anticipated that there would be occasions where the evaluating physician could not determine the extent to which each injury contributed to the disability.  The WCAB apparently did not address whether these “exceptional” cases are starting to become the norm, resulting in a passive undermining of the law on apportionment.

LC4664 Apportionment Allowed Following a C&R

Labor Code section 4664(b) apportionment of PD is generally only applicable to prior Awards of PD following a stipulated settlement or Findings & Award.  Section 4664 subtraction is generally not allowed when the applicant’s prior claim was settled by C&R.

A WCAB panel clarified that if the prior C&R specified the factors of PD, 4664 apportionment may be allowed. Perez Garcia v. SCIF. If all the factors of PD attributable to the second injury already existed as a result of the first injury, then there may be a total overlap and therefore no basis for a PD award on the second injury.  If there is partial overlap, then the second award may be reduced.

The lesson for employers is to set forth the factors of PD which are the bases for settlement in all C&R’s whenever possible.

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