Monthly Archives: October 2012

What is Valley Fever? Workers’ Compensation Attorney Explains the Basics

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As part of Adelson, Testan, Brundo and Jimenez’ ongoing educational seminar series, presented on ATB Law’s YouTube Channel, David Tew, managing partner at our Fresno office, covers workers’ compensation issues and defense strategies related to Valley Fever.

Valley Fever is also known as coccidiomycosis, an infection in the lungs and respiratory system caused by inhalation of Coccidioides immitis, a fungus that grows in soil in areas of the US and Central and South America. Valley Fever generally causes a temporary disability, and in its most common forms is not a cause to be unable to work. In cases where permanent disability does arise from Valley Fever, impairment can range from 0% to 100% disability, and in rarer cases may involve a death benefit.

Avenues of Workers’ Compensation Defense against Valley Fever

Valley Fever must be diagnosed through lab tests to create substantial medical evidence for a workers’ compensation claim. When deposing a worker claiming a Valley Fever injury, it’s also important to determine the symptoms, as Valley Fever’s various forms present with classic symptoms.  In addition, employees who live or visit endemic areas on a non-industrial basis will have difficulty proving industrial exposure, as will those who do not have a greater exposure than that of the general public. There are, therefore, four common avenues of defense against workers’ compensation claims involving Valley Fever:

  • If lab tests show negative results for Valley Fever but these are contradicted by a doctor’s opinion, there is a strong opportunity for defense if an exact copy of the negative lab tests is obtained.
  • Negative symptoms combined with a negative lab test are a possible avenue of defense.
  • Valley Fever can be recurring, and therefore a pre-existing condition that would not be covered under workers’ compensation.
  • Directly compare the employee’s risk of exposure to that of the general public through complete discovery and history of residence, travel, and illnesses, among other factors. If the employee’s risk was not greater than that of the public, the employee may not meet the bar of proving industrial exposure.

As one of the top workers’ compensation defense firms in the nation, Adelson, Testan, et al. is experienced in defending against all types of claims, including Valley Fever. Learn more about Valley Fever, including how it is spread, treatment options, diagnosis, complications, and further defense strategies by watching David Tew’s video seminar on Valley Fever on YouTube.

Compounding Drugs Could Create Higher Workers Compensation Liability

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Jeffrey M. Adelson, managing partner of the Santa Ana, California office of Adelson, Testan, Brundo & Jimenez, the national workers’ compensation defense firm, was recently quoted in an article on the front page of Business Insurance discussing the risks and costs associated with contaminated compound drugs in workers’ compensation cases.

Concerns over the practice of large scale compounding are rising following an outbreak of meningitis linked to a New England drug compounding company, and as Adelson noted for Business Insurance, this could have far reaching implications for employers.

How Drug Compounding Becomes a Risk

Under current regulations, in most cases compounded medication should only be manufactured to meet the customized dosage needs of individual patients via prescription when more commercially available drugs are not adequate. Exceptions would include cases of national drug shortages.

However, it appears that some pharmacies might be manufacturing compounded medication on a larger scale without prior approval by the FDA and other regulatory bodies. This appears to be the case with New England Compounding Pharmacy, Inc., the pharmacy linked to doses of injectable steroids contaminated with meningitis that have resulted in the loss of 20 lives and caused 250 confirmed meningitis cases.

Ordinarily, compounding pharmacies are not subject to the greater oversight put on large scale manufacturers of compound drugs, nor are they subject to the same price controls. This sets up the scenario in which batches of contaminated drugs are distributed, which could potentially raise the cost of a workers’ compensation claim.

Contaminated Compounds and Workers’ Comp

In his observations to Business Insurance, Adelson pointed out not only the likelihood of a workers’ compensation claimant receiving contaminated medication in large scale cases like that of the New England Compounding Pharmacy, but the ways in which this could impact the cost of workers’ compensation claims:

  • As the contaminated medication would be administered under the original workers’ compensation claim, the employer and insurer could be held liable for the additional costs to treat the health problems arising from the contamination.
  • Contamination with bacteria such as meningitis that can cause lifetime disability and even death “could turn a typical claim into a catastrophic case,” says Adelson.
  • Employers could protect themselves by subrogating under a product liability argument. Even so, the additional costs represented by taking this defense through to resolution could inflate the workers’ compensation claim.

Adelson, Testan, et al. is committed to proactively representing its clients’ litigation needs in workers’ compensation defense. We encourage our clients to ask questions about emerging issues like drug compounding and how this could impact existing and future workers’ compensation claims.

 

What is MRSA? Adelson, Testan, et al. Explains the Basics

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MRSA, Methicillin Resistant Staphylococcus Aureus, is a medical condition caused by staph bacterium. MRSA can be transmitted through contact with skin or the personal items of anyone carrying MRSA on their skin, even if they do not have an infection.  In workers’ compensation claims, ordinarily an injured worker has the burden of establishing that an injury arose out of employment. California Labor Code Section 3212.8 provides a presumption that MRSA arose out of employment or the course of employment (AOE/COE) for several classes of workers, whether they are volunteers, partly paid, or fully paid:

  • Sheriff’s officers
  • Police, firefighters and related personnel
  • Forestry (primary duty of firefighting)
  • Fish and game workers

Defending Against MRSA Related Claims

The presumption covers MRSA skin conditions and internal infections for workers during their period of service. Schools, prisons and jails, long term care facilities, gyms, contact sports, and day care centers are all frequent points of origination for such MRSA infections. Given this information, employers must first decide whether to accept or deny a worker’s compensation claim. In industries that do not have a presumption, the employee must prove the MRSA infection is AOE/COE. Employers should take action to:

  • Prove exposure outside of work, such as at a doctor’s visit or contact with an infected person.
  • Establish a full medical history, including all hospital and doctor visits and prescriptions.
  • Run criminal and civil background checks for other potential sources of infection, such as prior convictions for drug use.
  • Obtain a general medical history of persons in close contact who may have transmitted MRSA to the employee.

For presumption cases, it is difficult to rebut a claim, but MRSA related conditions other than skin infections and blood borne diseases are not covered by the presumption. Given the necessity of early treatment in MRSA cases, it may be more cost effective to pay for early medical treatment and fight the claim afterwards. Remember, providing a benefit does not automatically advance approval of a claim.

Learn more about defending against worker’s compensation claims involving MRSA infections from David Tew, Managing Partner of the Adelson, Testan, Brundo & Jimenez Fresno office in our educational seminar series by clicking on the YouTube video below or contact the law offices of Adelson, Testan, et al. for more information.

Sleep Deprivation in Workers’ Compensation Cases

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Michael Costello, partner at the Santa Ana office of Adelson, Testan, Brundo and Jimenez, recently contributed to ATB Law’s educational seminar series with an overview of sleep deprivation add ons in worker’s compensation cases. Sleep deprivation is not a condition, it is a symptom. The AMA Guide helps determine causes of sleep impairment, and whether it is work related. Depositions can uncover pre-existing sleep disorders to help defend against workers’ compensation claims, especially depositions with significant others. Several possible workers’ compensation defenses arise here:

  • Six month rule
  • Post termination
  • Good faith personnel action

Understanding Sleep Deprivation & Workers’ Compensation Defense Strategies

Risk factors that increase the risk of sleep deprivation include morbid obesity, smoking, and neurological disorders. Causation is critical to prove. It can be neurological, pain related, psychological in nature. The question is whether this is a direct cause or a compensable consequence arising from a claim, and defendants must ask questions to determine this.

The doctor’s report should thoroughly cover all aspects of reporting and follow the rules covered under the AMA Guide. Defendants should review medical reports for accuracy; oftentimes, the consulting doctor takes a patient’s word for the condition without a full history, and this can be defended against based on inconsistencies or incomplete data. Next, a utilization review should look at whether there are enough facts in the report to determine causation. A consult after certification will determine causation, but it is not yet time to pay for testing if the sleep deprivation is related to an underlying cause such as pain. Only after maximum medical improvement for an injury is reached should the sleep impairment be revisited to determine whether it is a compensable injury.

Any daily living impairment must be proved through a multi-sleep latency test following a polysomnogram. California’s workers compensation currently rejects impairment under solely an Epworth test as it is an informal test and not objective; Adelson, Testan, Brundo and Jimenez recommends that defendants get the raw data of the MSLT and PSG before paying for any impairment, and should not authorize MSLT and PSG based on the applicant’s or doctor’s request before MMI is reached.

Follow Adelson, Testan, Brundo and Jimenez’ YouTube Channel for more workers’ compensation defense educational seminars, or contact ATB Law to learn more.

The Coming and Going Rule: An Employer’s Responsibility for Traveling Employees

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by Zarina Ajwani, Associate Attorney with Adelson, Testan, Brundo & Jimenez

Employers often ask if they are responsible for Workers’ Compensation benefits if their employees injure themselves on the way to work.

Usually (and thankfully), an employer is not liable for providing workers’ compensation benefits for injuries sustained during one’s daily commute. This is known as the “coming and going” rule. However, like most things with law, there are exceptions. The rule is not as simple as many people perceive it to be.

Knowledge is Power, and businesses have to be aware of the various exceptions to the coming and going rule. The workers’ compensation attorneys at Adelson, Testan,Brundo & Jimenez (ATB Law) work with employers to ensure that businesses are aware of these exceptions and can take action to protect themselves from potentially being liable for employee injuries while traveling.

The exceptions to the “coming and going” rule usually consider whether the travel of the employee was somehow a benefit to the employer and if it was closely related to the employee’s job duties. While there are many exceptions to the “coming and going” rule, they generally fall into four general categories:

  • The employee has no fixed place of employment and travels to multiple job sites
  • The employee injures himself while traveling to a location away from his normal job site
  • The employee is on a special assignment for the employer; and
  • Travel is a significant part of the employee’s job duties.

Category 1- Traveling to Multiple Job Sites

If a worker has to use his personal vehicle to travel to multiple job sites in one day and gets injured en route to one of these job sites, are the injuries compensable?

The 1972 decision in the case of Hinojosa v. WCAB allowed an injured farm worker to be entitled to workers’ compensation from his employer. The employee in that case used his own vehicle while traveling to various farms and jobsites. The court’s reasoning concluded that the employee’s injury is covered by Workers’ Compensation because having his personal vehicle at work is an “implied condition of employment.” This exception would apply when an employee travels to multiple work sites and does not have one specific, fixed location of employment.

Category 2- “Commercial Traveler” Rule

Another exception to the “coming and going” rule applies when an employee is away on a business trip. The general rule is that an employee is considered to be acting in the scope of his or her employment the whole time while away on business.

In the court case of IBM Corp. v. WCAB, an employee usually worked at one job site but had to travel out of state for a special business trip. His employer encouraged and gave him permission to visit out of state relatives while he was there. He had to work Monday through Friday but made a 60 mile trip to visit his relatives over the weekend. He was killed in an automobile accident when his cousin was driving him back to his hotel. The court concluded that the 60-mile trip by the employee was a normal incident of his travel in connection with his out of town temporary work assignment. The “commercial traveler” rule suggests that an employer is responsible for injuries sustained by an employee while traveling for work, even if they seem unrelated to the employee’s job duties.

Category 3- “Special Mission” Rule

Although an employer is customarily not liable for injuries sustained by an employee en route to work, an injury is compensable if during his regular commute- the employee also is performing a special errand or “mission” for his employer. Employers should think twice before asking an employee to perform a special task for them before coming into work.

The employee’s conduct is “special” if it is “extraordinary in relation to routine duties, not outside the scope of employment.” (Schreifer v. Industrial Acc. Com. (1964) 61 Cl. 2d 289). For example, in the Schreifer case, the employee was a sheriff and was scheduled to begin work at 7 p.m. on a particular day. At 1 p.m. of that day his supervisor called him at his home and instructed him to report for duty “as soon as possible.” The employee left for work in his own vehicle and was involved in a car accident.

The court reasoned that because the employee was on a special mission at the time of the accident, the employer was liable for Worker’s Compensation benefits. Coming in hours early than he normally was required to report was a “special service” to his employer.

Category 4- Traveling is part an employee’s primary job duty

When an employer requires its employee to travel in order to accomplish their job duties, the “coming and going” rule does not apply. Remember, the big question is whether an employee’s injuries occurred while they were performing their normal job duties. See Labor Code Section 3600 (a) (2) which states an injury is compensable “where at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment.”

If an employee is a pilot, bus driver, delivery truck driver, etc. their travel is well within the scope of the employee’s course of employment. For example, in Huntsinger v. Glass Containers Corporation, the employer was liable for injuries of a traveling repairman who had extensive use of a truck while visiting customers in the field. Their travel is for the sole benefit of the employer and they wouldn’t be able to do their job without driving or traveling.

It’s important to point out that a careless employee driver won’t absolve an employer from having to provide workers’ compensation benefits. In Westbooks v. WCAB, a bus driver who sustained injury as a result of nearly hitting an oncoming vehicle while recklessly driving his bus but was still entitled to receive workers’ compensation benefits. As mentioned in our previous blog post, drivers distracted by their smart phones can cost their employers thousands of dollars in Workers’ Compensation litigation.

Conclusion

While injuries of employees during travel to and from work are normally not covered by workers’ compensation, there are exceptions. An employer may be responsible to provide their employee with compensation benefits during travel, if the travel was related to and for the benefit of the employer. Of course, each case is fact specific but the attorneys at Adelson, Testan, Brundo & Jimenez are experienced with working with employers to inform them about limiting the risk of being liable for employee accidents while traveling.

Disclaimer: The information contained in this Blog is provided for informational purposes only, and should not be construed as legal advice on any subject matter. An attorney/client relationship is not formed by reading this article. The content of this Website contains general information and may not reflect current legal developments, verdicts or settlements.