Parker, Kern, Nard & Wenzel
Legal Updates


Parker, Kern, Nard & Wenzel Successfully Defends Claim For A Temporary, Industrial Aggravation Of A Non-Industrial Condition

On April 27, 2006, the Honorable Terry Menefee issued a take nothing Finding & Order on applicant's claim alleging a temporary aggravation of a non-industrial epileptic condition on the ground that an objective, reasonableness test is necessary for a finding of industrial contribution.

Background:

Applicant, a 15-plus year Deputy Probation Officer, initially filed a claim for cumulative trauma over the period ending March 20, 2000 alleging injury to her psyche as well as an aggravation of a long-standing epileptic condition. Applicant dismissed the psychiatric claim and the case proceeded on the physical aggravation issue.

A condition of employment as a Deputy Probation Officer was a valid driver's license which applicant maintained through a secret agreement with her doctor that he would not report her to the Department of Motor Vehicles if she agreed not to drive. Her husband drive her to and from work.

Applicant's epileptic condition was well known in the workplace with the employer accommodating the condition by assigning her duties which did not require her to drive. In spite of the accommodation, applicant was fearful of losing her job contending that the resulting stress increased the frequency of her epileptic seizures causing temporary total disability from April 14, 1994 to July 6, 1995 and from March 30, 1998 to November 1, 1998.

Defendants contended that the first period resulted from a change of medication and the second as a result of applicant becoming the subject of an internal affairs investigation for riding in a car which her husband was driving while smoking marijuana.

Agreed Medical Examiner (AME):

All issues were submitted to an AME who authored two reports (and two depositions) concluding that there were no actual events of employment contributing to applicant=s stress. Although he stated that applicant's fear of losing her job might be the cause, he could not say with medical probability whether it was the perception of stress, the change in medications, the internal affairs investigation or the natural waxing and waning of the condition that caused an increase in the frequency of the seizures and resulting periods of disability.

Trial:

The case proceeded to trial on February 20, 2006 (Eric W. Wenzel appearing) with employer witnesses confirming that a requirement of the job was a valid driver's license but that applicant had a medical condition which necessitated her being assigned jobs not requiring her to drive. The internal affairs investigator testified that he was unaware of any disciplinary action taken as a result of the investigation.

Applicant was not present at trial as she had suffered several seizures over the previous weekend. Her deposition transcript was admitted in lieu of her testimony.

Judge Menefee concluded that applicant failed to sustain the burden of proof on the issue of injury AOE/COE on two grounds: 1) an objective/reasonableness test is necessary to support industrial contribution: and, 2) the AME report was not substantial evidence of industrial injury.

Why This Decision is Important:

The requirement of an objective/reasonableness standard for stress in physical claims is consistent with the amendments to LC 3208.3 which overruled the Albertson standard for psychiatric claims based on a perception of stress.

Although this is only one judge's opinion, it could be the foundation for important law should applicant attorney decide to appeal.

A redacted copy of the Findings and Order is attached as a .pdf file but should not be cited until all appeals have been exhausted and the Decision is final.

Donna Guillen.pdf