Hanker v. City of Stockton (BPD) 43 CWCR 91
Hanna Brophy attorney, Jeff Lusich, was recently able to eliminate his client’s liability for permanent disability by proving all of the elements of Labor Code section 4056. This affirmative defense provides that a defendant is not liable for any disability that is caused or aggravated by an unreasonable refusal by the injured worker to undergo medical treatment. He was able to reduce the permanent disability from 100% to 0%.
Labor Code section 4056 provides:
No compensation is payable in case of the death or disability of an employee when his [sic] death is caused, or when and so far as his disability is caused, continued, or aggravated, by an unreasonable refusal to submit to medical treatment, or to any surgical treatment, if the risk of the treatment is, in the opinion of the appeals board, based upon expert medical or surgical advice, inconsiderable in view of the seriousness of the injury.
This case involved a 38-year-old police officer for the City of Stockton. She developed cardiac arrhythmia and began taking medication (Metropolol). A combination of her arrhythmia and the side effects of the medication rendered her unable to work. She was entitled to the heart presumption as described in Labor Code section 3212.5 (which includes the anti-attribution clause) and was diagnosed as having paroxysmal supraventricular tachycardia with atrial tachycardia suspected. This condition is “heart trouble” and, therefore, is presumed compensable with no apportionment of permanent disability. Treatment continued for over one year as did TTD benefits. The consultative treater recommended an ablation procedure, which the applicant declined. The PQME also recommended the ablation procedure. Again, the applicant declined to undergo the recommended treatment.
Based upon the evidence that Mr. Lusich presented at trial, the WCJ found 0% permanent disability. The AA filed a petition for reconsideration, which the Reconsideration Unit of the WCAB granted. The WCAB, citing the case of Department of Health Services v. Superior Court (McGinnis) (2003) 31 Cal.4th 1026, held that, under the circumstances specified in Labor Code section 4056, an employee’s failure to take reasonable steps to avoid further injuries can provide the employer with a partial or complete defense to a workers’ compensation claim. The applicant’s attorney then filed a petition for writ of review, which was denied.
The applicant’s application for IDR was also denied by the City and, eventually, withdrawn as we were able to demonstrate that the tenets of Labor Code section 4056 also apply to the IDR process. (See Reynolds v. City of San Carlos (1981) 126 Cal.App.3d 208.) Estimated savings to the City of Stockton amounted to anywhere from $1.6 to $2 million on a 100% PD award and $475,000 on IDR payments. The decision demonstrates that the WCAB is willing to enforce Labor Code section 4056, even if there may be a substantial loss of benefits to the applicant. The key to success is to obtain and present evidence on all of the elements of the Labor Code section 4056 affirmative defense.
You can contact Mr. Lusich at the Sacramento office of Hanna Brophy or find your local expert here: www.hannabrophy.com/offices/.