JOHN A. FERRONE, ESQ.
Adams, Ferrone & Ferrone
California peace officers and all public safety personnel face many challenges that expose them to a very real risk of serious injury and death. We are all aware of the pitfalls to the workers’ compensation (workers’ comp) system. However, peace officers face even more uncertainty when entering the industrial disability retirement (IDR) process.
Recently, we have seen a ramp-up of litigation in the IDR cases even when the workers’ comp evidence confirms the (public) safety member cannot return to full duty. Cities are referring the injured officer to a separate medical evaluation for the IDR PERS case. This evaluator may or may not confirm the safety member’s disability. If the report states the member is not disabled, the IDR application will be denied and the member will have to appeal the denial to an administrative hearing.
Furthermore, the PERS hearing will require the physical appearance of the medical expert to testify about the medical findings — which is a significant cost to the employee. The employers know safety officers do not have the funds to pay. If no expert appears, the application will be denied! Worse, the city can slow the process and the member ends up burning through all their accrued leave.
Enter Huntington Beach POA to the fight. The POA had been struggling with a dysfunctional approach the City of Huntington Beach relied on in denying cases. There were several pending IDR cases where there was no dispute in the workers’ comp process — the safety officer could not return to work. In each case, the previous City leadership retained an outside law firm, who advocated a new process — sending the safety officers to another medical evaluation, which then determined the member to be fit for duty! These members just fell into the IDR swamp as a result of this dysfunctional approach. There needed to be a change.
The City and Huntington Beach POA had previously negotiated a labor-management agreement to expedite workers’ comp claims. To that end, the new alternative dispute resolution (ADR) program utilized a list of independent medical evaluators (IME) in various specialties to resolve all disputes. If a dispute arose, such as the ability to return to work, an IME would be assigned to the case within 30 days, and the IME had to issue a report 30 days later. We collaborated with the POA and suggested to design a side letter from the ADR agreement that will streamline the IDR process, reducing city costs and protecting the member.
The essence of the new agreement was to require the City to use the existing IMEs from the workers’ comp ADR panel and further allow the written report to be admissible if the case went to a hearing. The goal was to expedite the process by getting the current IME to issue a supplemental report addressing four important PERS issues (IDR). The goals were to reduce costs and delays to the members and the City.
Huntington Beach POA has been on a four- to five-year revamping of its efforts in politics, public relations, community outreach and more. They have become highly effective in Orange County and are continuing to build. In this case, the Huntington Beach POA showed city leaders a way to reduce city costs, care for the member and put cops on the street. Based upon the fact, the city leaders in Huntington Beach received unfiltered information and correct data and they fully understood the value of the new agreement. The City agreed to a side letter and it was officially adopted by the city council.
The new IDR process will save the City huge expenses in litigation and the costs of medical experts. More importantly, injured safety members have a fast track from the workers’ comp system to the IDR. I can’t stress enough the importance of every association to strengthen their relationships in the community and government to overcome these and other deceptive tactics being used against members and their families. No more will safety members be facing the litigation swamp. “This item should be on every association’s radar statewide,” says Yasha Nikitin, president of the Huntington Beach POA. Nikitin can be reached at firstname.lastname@example.org.
About the Author
John A. Ferrone is a partner in the law firm of Adams, Ferrone & Ferrone. Adams, Ferrone & Ferrone specializes in the representation of public safety in labor negotiations, internal affairs investigations, workers’ compensation, officer-involved shootings, civil litigation and retirement. The law firm has offices in Westlake Village, Long Beach, Orange County and San Diego. If you have further inquiries, please email them to email@example.com.
Symposium Registration and Topics Announced – 2/2018
Registration for the 2018 Symposium Issues at the DoubleTree by Hilton Hotel Golf Resort Palm Springs is now open! Find Out More…
The Impact of Court Cases & Pension Reform On Law Enforcement
2018 Symposium Topics:
Something Wicked This Way Comes: Janus v. AFSCME
Robert Bonsall, PORAC Corporate Counsel
So You Thought 60 Years of Established and Unchallenged Law Would Protect Your Pension? Not So Fast . . .
Timothy Talbot, Attorney, Rains Lucia Stern St. Phalle & Silver
Legislative & Political Action Update
Randy Perry, PORAC Lobbyist, Aaron Read & Associates
FLSA Tactical Training for Law Enforcement: The Basics, Emerging Issues, and Defeating Management Dirty Tricks to Undermine the FLSA at the Table
David E. Mastagni, Attorney, Mastagni Holstedt, A.P.C.
Mind vs. Machine
Alison Berry-Wilkinson, Attorney, Berry Wilkinson Law Group
What Every Board Member Needs to Know To Stay Out Of Trouble?
Rick Pinckard & Brad Fields, Attorneys, Bobbitt, Pinckard & Fields
The Real Threat to Your Liberty: the Federal Government
Paul Goyette, Attorney, Goyette and Associates
POA Injury Recovery and/or Disability Toolbox: How to Help Your Members Navigate the Workers’ Compensation System
Steve Scardino, Attorney, Geklaw
∼Additional Topics Will Be Added as Issues Arise∼
*topics subject to change*
Adam D. Dombchik, ESQ.
Gordon, Edelstein, Krepack, Grant, Felton
& Goldstein, LLP
In California workers’ compensation law, the employer is only liable to pay permanent disability (PD) benefits for what is directly caused by the industrial injury. With Senate Bill (SB) 899 signed by Governor Arnold Schwarzenegger in 2004, and case law developing from it, employers have a broader ability to limit their liability to pay permanent disability by pointing to various non-industrial factors, such as pre-existing conditions. These other factors are commonly referred to in the law as “non-industrial apportionment.”
On June 24, 2017, the California Second District Court of Appeal issued a binding published decision, Hikida v. WCAB, that further defines the rule of apportionment. The court ruled that an employer required to provide medical treatment to an injured worker is 100% responsible for any permanent disability caused by such medical treatment (i.e., surgery). The PD cannot be apportioned to non-industrial factors that may have existed as to the underlying, original injury.
Ms. Hikida sustained a work-related carpal tunnel syndrome injury to her arm. She underwent a carpal tunnel release surgery, but her recovery went poorly. She was later diagnosed with chronic complex regional pain syndrome stemming from the surgery, and never returned to work. The evaluating doctors found that a portion of her original carpal tunnel injury was apportioned to non-industrial factors. However, they found that her inability to work and her finding of permanent total disability was completely due to the complex regional pain syndrome condition, rather than the carpal tunnel.
The California Court of Appeal reversed the workers’ compensation judge’s decision finding of less than 100% PD. Rather than limiting PD based on apportionment to non-industrial factors related to the original carpal tunnel syndrome injury, the court awarded Ms. Hikida 100% permanent total disability, since her inability to work was a direct result of the unsuccessful medical intervention and resulting complex regional pain syndrome diagnosis. The court said, “It has long been the rule that the aggravation of an industrial injury or the infliction of a new injury resulting from this [medical] treatment … is compensable.”
Over the last 12 years or so after SB 899 passed, it was argued that disability stemming directly from industrial medical treatment should still be apportioned based on the underlying, original injury. If that argument won on this case, Ms. Hikida would not have been awarded 100% permanent total disability despite her serious medical conditions and inability to work. The court has now clarified this issue in the case of Hikida. Workers’ compensation judges throughout the state must follow this new case law. This is an important victory for injured workers.
About the Author
Adam D. Dombchik, Esq., is a co-managing partner in the law firm of Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP. He is a certified specialist in workers’ compensation law and a strong advocate for the rights of injured workers in the public and private sectors.