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February - March 2016

CAAA v. DAHL

As we advised last month, the Dahl decision was the subject of several sessions at the California Applicant Attorneys’ annual meeting. The applicant’s bar has launched a vigorous attack on the First District Court of Appeals’ decision in the Dahl case on several grounds. The primary holding of that case was that the Diminished Future Earning Capacity (DFEC) portion rating schedule could only have been rebutted by a showing that the applicant was not amenable to vocational rehabilitation, and had thus suffered a Diminished Future Earnings Capacity in excess of the schedule due to her industrial injury; but because neither party had done so in Dahl, the Board’s decision was annulled and returned to the trial level.

The initial attacks claimed that the Dahl decision only applied to the facts of that case, and because of that, further discussion by the Court was dicta—non-binding “fluff,” a useless discussion by the Court. They had to make that argument, because the Court also said that it was impermissible to attack the rating schedule by simply showing that an expert’s statistical analysis was superior to the rating schedule.

It appears that there will be several novel approaches to rebutting the schedule to get a higher rating.

* Show that because of the industrial injury, access to the labor market has been diminished.

* Use the AMA Guides statement in Chapter One that defines a disability as “an alteration of an individual’s capacity to meet personal, social, or occupational demands or statutory or regulatory requirements because of an impairment.”

* Count and compare the number of jobs available to an injured worker after the injury and compare that to the number available before the injury.

*Leverage the language in the case of Chase v. Contra Costa Mosquito & Vector Control District: (1) “a party may in rare instances prove that the medical complications of an injury are not captured by the generalized data used to classify injuries and impairments,” or (2) “a challenge [to the rating schedule] must address earning capacity.”

Can they win with these approaches? Perhaps at the trial level, perhaps even on Reconsideration, they may have some success, but we predict they will not be successful at the level of a Court of Appeals because of the language in the Ogilvie and the Dahl decisions—both of which came from the First District Court of Appeals in San Francisco.

By Richard Berryhill


COMPENSABILITY OF OFF-DUTY INJURIES TO PUBLIC SAFETY EMPLOYEES WHILE ENGAGED IN FITNESS ACTIVITY

We were very encouraged by the issuance on May 12, 2015 of the Noteworthy Panel Decision in Simon v. City of Vacaville, 2015 Cal. Wrk. Comp. P.D. LEXIS 289. In that case, a WCAB panel decided (2-1 split decision) that “applicant police officer did not sustain compensable injury on 10/25/2013 while hiking off-duty with his large dog. A majority WCAB panel reasoned that compensation claims stemming from off-duty recreational/athletic activities are barred under Labor Code § 3600(a)(9) and Ezzy v. W.C.A.B. (1983) 146 Cal. App. 3d 252, 194 Cal. Rptr. 90, 48 Cal. Comp. Cases 611, if employee's subjective belief that activity during which injury occurred was expectancy of employment was unreasonable. Here, applicant failed to prove that it was objectively reasonable for him to believe that his individual fitness plan with employer City of Vacaville covered hiking on steep, unmaintained trail, as evidence established that employer put reasonable limits upon kinds of activities covered under individual fitness plan, which expressly provided that off-duty activities performed outside [2] of fitness plan guidelines and safety recommendations were "excluded from workers' compensation coverage," that "Off-road cross country type running is not authorized," and that "all running, jogging and walking must be performed on a sidewalk, city park, school athletic field or treadmill." All of these implied that off-road hiking on steep, unmaintained trail was not covered, and WCAB believed that employer's limitation was reasonable given increased exposure to injury in off-road setting.”

Unfortunately, the Board has not chosen to designate that decision a “Significant Panel Decision,” nor have they reviewed it en banc. Accordingly, it remains only persuasive authority, not binding authority, in comparable cases.

Nonetheless, it tends to give us guidance as to what steps a public employer can take to protect itself from off-duty injury claims in the workers’ compensation arena. Employers may wish to establish a policy regarding what types of off-duty fitness activities are acceptable as part of the officer’s plan to maintain the fitness required by the job. For example, if working out in a home or commercial gym is acceptable, the policy could specify that activities solely geared to off-duty competition, such as power lifting, body building, extreme martial arts, boxing, “Iron Man” events (just to name a few) are not considered part of a reasonable fitness plan. The off-road running exclusion cited in Simon seems appropriate. A similar exclusion should probably apply to off-road mountain biking or other extreme bicycle events, as well as white-water rafting, mountain climbing and open-water (bay, ocean) swimming. Of course, no policy can cover every contingency, so it would be important to use language such as “including but not limited to….” and “comparable ‘extreme’ physical activity.”

For now, the longstanding rule set forth in Ezzy v. W.C.A.B. (1983) 48 Cal. Comp. Cases 611 stands as the definitive case law authority. Simon gives us a way to argue that the activity in our cases doesn’t meet the Ezzy requirements for compensability.

By Patricia Hastings

 


 

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