Haven’t you always been told that the City is there to protect you if you get injured on the job? Your workers’ compensation benefits will be provided promptly and without question – correct? Well, as I’ve written in many past articles, you know that is not always the case. Medical treatment is often questioned, delayed and denied. Temporary disability compensation (your IOD pay) is sometimes challenged by the City because they don’t believe you or your doctor. Here is a recent example of the City challenging a firefighter’s right to receive permanent disability compensation resulting from one of the worst injuries you can incur . . . cancer.
Cancer is an injury that is presumed to be industrial provided you prove the elements to trigger the presumption. Once you’ve jumped through the hoops and met those requirements, you would expect to receive all of the workers’ compensation benefits that are provided for your injury.
My partner, Gold Lee, represents a City firefighter who developed prostate cancer and as a result of his condition, underwent surgery which left him with erectile dysfunction. An agreed medical examiner (a neutral doctor that was agreed upon by the City and Mr. Lee) concluded that the cancer presumption applied and that his cancer should be considered industrial. The doctor further stated that our client should be provided with future medical treatment and permanent disability compensation for the effects from his treatment (i.e. the erectile dysfunction). The AME assigned a permanent disability “rating” for removal of the prostate and a separate rating for the ED.
When Mr. Lee attempted to informally resolve the claim, the City, based upon advice from the City Attorney’s office, refused to agree that any compensation be paid for the ED. The City relied upon a change in the law enacted as part of the last workers’ compensation reform in 2012 which stated that compensation will not be paid for sexual dysfunction that is a “compensable consequence” of an injury. Mr. Lee argued to the City that ED resulting from prostate cancer surgery was not a compensable consequence of an injury but rather a direct consequence of a physical injury, namely a direct injury to the reproductive system. In trying to persuade the City they were legally incorrect, he cited as an example of a compensable consequence a person with hypertension who suffers from ED as a side effect from medication prescribed for the hypertension. On the other hand, ED resulting from surgery to remove the prostate gland is a direct injury to the reproductive system because it was directly caused by the surgery. That argument fell on deaf ears and the City continued to insist they did not owe compensation for the firefighters’ ED.
The case proceeded to trial at the Workers’ Compensation Appeals Board (WCAB) where a judge attempted to convince the City Attorney they were wrong. Failing to do so, the judge ultimately ruled in our client’s favor and awarded compensation for his ED.
The City Attorney, believing the judge to be incorrect, filed an appeal with the WCAB in San Francisco where a panel of three WCAB Commissioners reviewed the case. Mr. Lee, with assistance from our associate attorney, Adam Turner, submitted a detailed brief as to why the judge was correct in his decision. The WCAB issued a unanimous decision agreeing with the judge and denied the City’s appeal.
One would think at that point the City would graciously accept its defeat and pay our client what he was owed. Unfortunately, what’s right does not always rule the day. The City then filed an appeal in the California Court of Appeal asking the appellate court to overturn the WCAB and the trial judge. Mr. Lee and Mr. Turner submitted an appropriate reply brief setting forth the correct reasoning that ED resulting from prostate cancer surgery is not a compensable consequence of the injury but rather a direct result entitling our client to permanent disability compensation. Approximately two months ago, the Court of Appeal denied the City’s appeal and affirmed the WCAB’s decision finally telling the City to pay our client what is rightfully his.
As you can see, while this issue would seem to be a “no brainer,” doing what is right doesn’t always occur when it comes to compensating injured firefighters. Yes, the City has an obligation to its taxpayers to make certain that only appropriate benefits be paid when an injury occurs. But justifying denied compensation for this dedicated firefighter on the grounds they are saving money is morally wrong. I know as a former deputy city attorney that it’s nice to get a “win” in court. But let’s pick and choose our battles and save those for the issues and cases that really matter.
I’m proud of my partner and associate for standing up to the City and legally proving how wrong they were in this case. It’s a shame our client and our office had to go to such efforts to prove this point, but in the long run, justice prevailed. Until our next battle, stay safe and healthy.
By Robert Sherwin