DISCLAIMER: The statements and opinions contained in this publication are those of the contributors only and are not necessarily those of the California Lawyers Association, the Workers' Compensation Section, or any government body. This information is intended to be a reference tool only and is not meant to be relied upon as legal advice.
As promised last month in my January eNews article this month I will highlight the Practice and Ethics Subcommittee of the Executive Committee of the
Workers' Compensation Section of the California Lawyers Association (CLA). This could not have come at a better time in light of the
newly updated California Rules of Professional Conduct, three of which I will discuss below.
The Practice and Ethics subcommittee is Chaired by John Parente and Co-Chaired by Zachary Frost. The goal of this subcommittee is to concentrate on
improving levels of professionalism and competence for all practicing before the Workers' Compensation Appeals Board through education and guidelines.
Below please find John and Zachary's overview of what the Practice and Ethics Subcommittee plans
on doing for us this year:
"The Practice and Ethics Subcommittee is dedicated to the improved practice of Workers’ Compensation law. While we are particularly interested in improving the courteous civil conduct of all appearing before the Workers’ Compensation Appeals Board, we are also interested in encouraging an improved recognition of the fact that despite the fact that this is an informal forum it is a legal proceeding, and all involved should strive to achieve that goal.
We plan on enlisting the assistance of the subcommittee as well as other members of the Executive Committee to host informal gatherings at various Boards to discuss a proper and ethical means to conduct discovery including depositions of both doctors and applicants. We would like to also encourage the proper use of subpoenas. Too often records are ordered without a simple telephone call to either the adjuster or defense attorney to obtain the required documents. On that same vein, we think the defense has to do a better job of informing their clients to be responsive to requests for information from applicant’s attorneys. We think that we can do this through organizations such as the Self Insurers Association, the California Workers' Compensation Institute, and other employer groups. Finally, we intend on obtaining additional articles for the Quarterly that directly affect Practice and Ethics."
Thank you John, Zachary, and your subcommittee in advance for all you will do this year to help make all of us more ethical practitioners.
Before I discuss three California Rules of the Professional Conduct, I want to remind all again that as of January 1, 2018 the CLA was established meaning that 100,000 lawyers separated from the State Bar of California as a 501(c)(6) non-profit entity. Why is this separation significant to us lawyers as it relates to an eNews article discussing ethics? Because I believe that although it has always been important for us to practice ethically, it is important now more than ever as this separation occurred so the State Bar of California could better protect the public by focusing on admitting and disciplining lawyers. I cannot help from wonder if this new change is the reason why for the first time in 20 years the State Bar of California is requesting I get fingerprinted.
The first California Rules of Professional Conduct Rule I will discuss is Rule 1.3 (a)(b) stating "A lawyer shall not intentionally...fail to act with reasonable diligence..." Pursuant to this rule, reasonable diligence means a lawyer will act with commitment and dedication to the interests of the client.
I constantly remind my clients temporary disability is called temporary disability because in most cases it will be paid for a temporary period of time and not for the rest of their lives. I do this to help my clients not become reliant on a benefit intended to provide assistance for a limited period of time. I am a firm believer 99% of the time it is in the best interest of my client to return to work after an injury. This is even more true if my client only has a high school diploma and is part of a union, with good benefits, and a secure future. I believe it is my ethical obligation to do all I can to help my clients achieve this goal.
In addition, pursuant to Labor Code Section 1171.5 ... "(a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status..."
Over the years I have represented many Spanish-speaking injured workers as I speak Spanish. During these initial meetings a large number of them disclose they are undocumented. Whenever I hear these words I reach for my labor code and explain they too are entitled to workers' compensation benefits. Each time I have this conversation, the tension in the room instantly disappears. It is one of the best parts of my job, empowering my clients through education. Although it is my responsibility to explain to my undocumented clients they have the right to workers' compensation benefits, it is also my ethical obligation to explain the risks involved in filing a claim such as getting fired or deported. I would rather lose a potential new client who is undocumented because I fully disclosed the cons of initiating a workers' compensation claim than fail to do so and run the risk of them initiating a claim and then get fired, evicted from their home, divorced, and deported. At the end of the day I have to sleep at night knowing I did all I could to ethically advise an extremely vulnerable human being sitting in my office trusting me with everything they have.
Commitment and dedication to the interests of the client to me means always putting my client first.
Second, pursuant to California Rules of Professional Conduct Rule 1.4(a)(3) "A lawyer shall keep the client reasonably informed about significant developments..."
I believe it is my ethical obligation to keep my clients informed throughout their case about everything. I really enjoy this part of my job. I tell my clients at their initial meeting, I and not my assistant, will be in contact with them once every 2 or 3 months, and sometimes more depending on what is happening with their case to give them updates. Experience has taught me however, to have this conversation with my clients at the beginning of the representation to avoid them worrying when I leave them a message out of fear I am calling them because there is an emergency with their case. I have had clients call me 5 times the day after I left them a message as they were convinced I was calling to give them horrible news about their case rather than me simply calling to give them an update on their case.
Doing the above helps me be in compliance with this rule requiring me to keep my clients reasonably informed about significant developments.
Third, pursuant to California Rules of Professional Conduct Rule 1.4(a)(2), "A lawyer shall reasonably consult with the client about the means by which to accomplish the client's objectives..."
During my regular calls to my clients I am constantly asking questions about their case to help me better achieve their objectives. I spend quite a bit of time discussing with my clients my best case involves three parts like a triangle. The first part of my triangle is my client is guided by a lawyer. The second part is my client returns to work. The third part is they get workers' compensation benefits.
Many clients believe that if they initiate a claim and/or hire a lawyer they are forbidden from returning to work. I love telling them this is simply not the case. I also tell my clients to not get a big head just because they hired a lawyer but to stay humble and do all they can to maintain a healthy relationship with their employer. I tell my clients to never forget their employer is the reason they have been able to pay their mortgage and support their family all these years. I also discuss that if their employer gets upset because they hired a lawyer they are probably upset because of the reputation my profession has. I suggest they stay professional even if their employer responds unprofessionally by telling their employer they are grateful for their job and hope to continue working for them for many years, assuming this is true, but needed a lawyer to guide them as they found the workers' compensation system difficult to navigate on their own.
In addition, I want to know if my client is happy with their treating doctor and if not, discuss the option of designating another one. I want to know if they are having problems getting treatment authorized and if so, explore why. I also spend time discussing utilization review, independent medical review, and the medical treatment utilization schedule. If they are not working I want to know if they are getting temporary disability, and if not why. I discuss state disability benefits if they are not working or getting temporary disability. I also spend a lot of time discussing what it means to be found permanent and stationary and given work restrictions, especially if I know my client wants to return to work where they were injured. If my client is unable to return to work because the employer cannot accommodate their work restrictions, I explain they are entitled to a $6,000 voucher and a $5000 Return to Work Program payment. I further explain I will refer them to a counselor to help with both and discuss exactly what this means.
Doing the above allows me to be in compliance with the above rule requiring me to reasonably consult with my client about accomplishing their objectives.
After practicing workers' compensation law 16 years, I still truly enjoy coming to work 95% of the time because I am interacting with adjusters, defense lawyers, and hearing representative who treat my clients, the court, and myself with respect, are well prepared, come to court on time, and dress professionally. Thank you to all those I have appeared against all these years for helping me help my clients. I could not have done my job without you. The 5% I find my job more challenging is usually when my opponents are baby adjusters, hearing representatives, or lawyers still trying to find their way. I will always forgive this 5% as I too was a baby lawyer 20 years ago and stumbled a lot before realizing how important it is to my clients to always have a good professional working relationship with all whom I came into contact with related to their case.
If uncertain about a course of action, seek advice by calling the Ethics Hotline at 415 538-2150. Your law license depends on it.
Please do not hesitate to email me at firstname.lastname@example.org with any questions about the above or joining the Executive Committee of the Workers' Compensation Section of the CLA.
Until next month when the Legislation Subcommittee will be highlighted.
Maria Antonieta Sager, ESQ.
Disclaimer: the following thoughts and opinions are those solely of the author, Judge Eric Ledger, and do not reflect the opinions or positions of any other entity, including but not limited to the State of California or the Department of Industrial Relations. While I strive to be accurate in my opinions, I am only human. I am always open to persuasive legal argument and the opinions expressed herein may change depending upon the facts of a case or any new developments in the law. These opinions should be taken with a grain of salt and are presented for informational purposes only and not as legal advice.
Section 4663 states, in pertinent part: “(a) Apportionment of permanent disability shall be based on causation.” (§ 4663(a).) There remains significant confusion amongst the bar as to the issue of apportionment of permanent disability per Labor Code, section 4663. One particularly confusing area, and the focus of this article, is what exactly it means to apportion the causative sources of permanent disability.
Most workers’ compensation practitioners are familiar with the line that apportionment is to causation of disability and not to causation of injury. I’m presupposing that the readers of this article are also familiar with the two seminal cases on apportionment under section 4663, which are Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc) and Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1326 (Brodie).) If you have not read those cases and you are litigating apportionment STOP NOW. Look them up. Read them. Now you may continue.
A significant paragraph in Brodie is the definition of permanent disability, which follows:
Permanent disability is understood as the irreversible residual of an injury. (Citation.) A permanent disability
is one which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive
handicap in the open labor market. (Citation.) Thus, permanent disability payments are intended to
compensate workers for both physical loss and the loss of some or all of their future earning capacity.
Brodie, supra at 1320 (citations and quotations omitted).)
Apportionment is to causation of disability and not causation of injury, but what does that mean? How do we distinguish between causation of disability and causation of injury?
I recommend the following analysis:
Here is an example: A 60 year-old woman has significant osteoporosis. She trips and falls while at work, breaking her femur.
The injury is a fractured femur.
There is only one cause of injury in this example, that is the trip and fall, which applied significant force to the bones causing them to fracture. In other words, applicant could have continued on with her osteoporosis without suffering any fracture to her femur. While osteoporosis may have made applicant more susceptible to bone fracture, that fact is immaterial to the analysis of causation of injury. The trip and fall proximately caused the fractured femur. The cause of injury is 100% industrial.
If this part is confusing, I would recommend reading South Coast Framing, wherein the Supreme Court thoroughly
discusses finding causation of injury and notes:
A corollary of the no-fault principles of workers' compensation is that an employer takes the employee as he finds
him at the time of the employment. (Citations.) Thus, an employee may not be denied compensation merely because his
physical condition was such that he sustained a disability which a person of stronger constitution or in better
health would not have suffered.
(South Coast Framing v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 300 (citations and quotations omitted).)
This is the permanent disability rating provided to the injury. For this example, the injured worker healed well following the fracture, however there was a minor limb length discrepancy of 2 cm, which rated to 2% WPI per Table 17-4, p. 528 of the AMA Guides. (American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (2001) (AMA Guides).)
This tricky part confuses many practitioners. Look only to the disability and what caused that disability. Here, the disability is a 2 cm limb length discrepancy. Unless osteoporosis is contributing to this (and for this example I will say it isn’t), the cause of the limb length discrepancy is solely the fractured femur. The permanent disability resulting from this hypothetical injury is 100% industrial. That is, the 2 cm limb length discrepancy (the disability) was solely caused by the industrial injury. If some alternative impairment rating was provided under the AMA Guides and the
osteoporosis was contributing to that impairment, apportionment would be proper.
I think people get confused because in some cases the causes of injury and the causes of disability parrot each other. This can be done so long as it is explained. I have seen this occur most frequently when the doctor assigns a diagnosis estimate under the AMA Guides. Where the diagnosis (i.e. injury) equates directly to impairment (i.e. permanent disability) the causation opinions are often the same. That does not mean that they have to be the same.
Don't blur the analysis.
A good example of the above would be a partial tear of the medial meniscus.
This would rate to 1% WPI per Table 17-33 of the AMA Guides (p. 546). The injury is a partially torn medial meniscus. Assuming no complications, the disability is also a partially torn medial meniscus, which assigns disability solely based upon the injury diagnosis. Where the disability is automatically assigned by the AMA Guides as the result of a sustained injury, the causation opinions tend to overlap. Don’t let this confuse you. Recognize when there is overlap in the analysis of injury and disability and recognize when there is no overlap.
Apportionment based on causation can include apportionment to conditions that existed prior to the injury,
but were not labor disabling. Just because the condition was asymptomatic does not mean that it cannot
contribute to the cause of permanent disability. This is another confusing concept about apportionment:
“Apportionment to risk factors is not allowed.” This statement is true, but perhaps inarticulate and
confusing. A more accurate statement follows:
Where any condition is proven to cause a portion of the permanent disability, apportionment is allowed. Where any condition has merely put applicant at an increased risk of sustaining injury or sustaining damages from injury, apportionment is improper.
The problem here is the semantics of the term ‘risk factor’. I prefer to use the term ‘condition’ because that term is interchangeable as between the analysis on causation of injury and causation of disability. The term ‘risk factor’ is not interchangeable. Osteoporosis can be a risk factor for fractured bones, but it cannot be a ‘risk factor’ for apportionment of permanent disability. Either the condition is causing an increase in permanent disability or it is not. Where osteoporosis (or any condition) is causing permanent disability, apportionment is allowed. Where osteoporosis merely made applicant more susceptible to sustaining damage, apportion is disallowed.
Defendant is liable for all of the damages caused by the injury (but only the damage caused by the injury). The fact that an individual is more susceptible to sustaining damages is immaterial. That is why it is said you cannot apportion to “risk factors”. In the above scenario, applicant had risk factors for sustaining broken bones, such as age and osteoporosis. However, we are looking solely at the cause(s) of permanent disability, not injury. Where any condition goes beyond speculation and is proven to cause increased permanent disability, apportionment is allowed to that condition.
© Copyright 2019 Eric Ledger. All rights reserved. Reprinted with permission.
As a benefit of Section membership, CLA is pleased to offer six hours of MCLE credit, offering credit in all of the MCLE subfields, Elimination of Bias in the Legal Profession, Detection and Prevention of Substance Abuse and Emotional Distress and Legal Ethics. Just watch these programs found at the link below, and keep a record of having done so, in the event you're audited for MCLE compliance.
CLA Workers’ Comp Section members may also use this link to access a plethora of our most popular articles from our publications.