POST TERMINATION FILING; DATE OF INJURY FOR A CT CLAIM; DISCOVERY CUT OFF -FAILURE TO LIST WITNESS ON PRETRIAL CONF STATEMENT

FIRST ISSUE:

LC 3600 (a)(10) says that an injured worker may not claim injury if the claim is reported ' post termination'. There are 2 exception:
a) Where there is evidence of medical treatment PRIOR to the termination; or
b) the injury was reported to the employer prior to the termination.

SECOND ISSUE:

LC 5412- Defining the date of injury on a CT claim. (referred to as 'disability plus knowledge') -date of injury is the date on which applicant:

1. Learned of the CT injury; and

2. Suffered disability as a result of the injury. "Suffering disability is further defined as evidence showing : "compensable temporary disability" or "permanent disability".

Generally, an applicant obtains knowledge that his disability is industrially caused when he receives medical advice from a doctor to that effect. This could be AFTER he was terminated.

On a CT claim, we sometimes see that the judge will find that the CT claim occurred AFTER the applicant was terminated. You may ask how an injury can occur AFTER someone no longer works for the employer? Well, in worker’ comp, a date of injury for the CT claim occurs when the applicant has ‘knowledge of an injury and resultant disability from that injury’.

Example: The applicant worked for a company for 5 years, suffered from wrist complaints, but didn’t know what it was due to nor did he report it to his employer. He was then terminated on February 19, 2011. At the time of his termination, applicant does not know that he suffered a continuous trauma carpal tunnel injury while employed at his former employer.

After he is terminated, on February 27, 2011, he goes to the doctor complaining of wrist pain. The doctor takes an MRI of the wrist and confirms he suffers from carpal tunnel syndrome and it’s work related due to the repetitive nature of his job through the years at the employer and that he was TTD.

Although applicant found this out AFTER he terminated from employment, the ‘knowledge’ that the injury was industrial took place AFTER he was terminated. Thus, by law, the CT claim is extended to the date on which applicant had knowledge of the injury and suffered disability as a result of it. The ending date of the CT in this case would be February 27, 2011, 8 days AFTER the applicant was terminated.

Thus, the applicant could still prevail on a CT claim, post termination.

THIRD ISSUE:

Can a witness be excluded from testifying at trial if he was not listed on the Pre-Trial Conference Statement? YES!!!

Here, defendant listed ‘applicant’s supervisor’ on the Witness portion of the Pre-Trial Conf Statement. On the trial date, the defendant wanted to have Supervisor, Nancy Mundo, testify on behalf of the employer. The judge EXCLUDED her testimony. Since she was not specifically named on the Stips and Issues (Pre-trial Conference Statement), she was not a properly identified witness. The court may have allowed her to testify in a situation where the defense, acting with due diligence, could not find out the name of the supervisor prior to the MSC date.

The key here is that you must ALWAYS put a name of a coworker, supervisor, adjuster, etc. as a witness and be as specific as possible. Otherwise, your vaguely identified witness can be excluded.

Non-MPN reports are inadmissible if treatment Unauthorized and MPN Notices Served Properly

Elayne Valdez
v.
Warehouse Demo Services; Zurich North America, Adjusted by ESIS
April 20, 2011

Case No. ADJ7048296 76 Cal. Comp.Cases _____

The Appeals Board held that, where unauthorized medical treatment is obtained outside a validly established and properly noticed Medical Provider Network (MPN), reports from the non-MPN doctors are inadmissible, they may not be relied upon, and defendant is not liable for their cost.

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This is a brand new en banc WCAB decision that says that, where there is a properly noticed MPN in place, and the applicant chooses to go outside the MPN, then all reports from a Non-MPN doctor are INADMISSIBLE. Not only that, but if the doctor recommends TTD or medical treatment, we do NOT have to comply with that.

Because the law was unclear before, please be sure to look at all your cases for this issue. If you are paying TD or authorizing treatment with a no-MPN doctor, and there is a properly noticed MPN in place, then object to all ongoing treatment and TTD, PD, etc.. Those reports are inadmissible.

Albert and Mackenzie Respresented Marshalls in Apportionment case and Prevailed with the Escobedo Decision

Albert and Mackenzie defended Marshalls on the issue of apportionment and prevailed. The result was the Escobedo en banc decision which was one of the landmark decisions in California Workers' Comp since the implementation of SB899 in April 2004.

Marlene Escobedo,
vs.
Marshalls; and CNA Insurance Co., April 19, 2005

Case No. (WCAB No. GRO 0029816 GRO 0029817)

70 Cal. Comp. Cases 604

1) Section 4663(a)'s statement that the apportionment of permanent disability shall be based on "causation" refers to the causation of the permanent disability, not causation of the injury, and the analysis of the causal factors of permanent disability for purposes of apportionment may be different from the analysis of the causal factors of the injury itself.

2) Section 4663(c) not only prescribes what determinations a reporting physician must make with respect to apportionment, it also prescribes what standards the WCAB must use in deciding apportionment; that is, both a reporting physician and the WCAB must make determinations of what percentage of the permanent disability was directly caused by the industrial injury and what percentage was caused by other factors.

3) Under section 4663, the applicant has the burden of establishing the percentage of permanent disability directly caused by the industrial injury, and the defendant has the burden of establishing the percentage of disability caused by other factors. 4) Apportionment of permanent disability caused by "other factors both before and subsequent to the industrial injury, including prior industrial injuries," may include not only disability that could have been apportioned prior to SB 899, but it also may include disability that formerly could not have been apportioned (e.g., pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions), provided there is substantial medical evidence establishing that these other factors have caused permanent disability.

5) Even where a medical report "addresses" the issue of causation of the permanent disability and makes an "apportionment determination" by finding the approximate relative percentages of industrial and non-industrial causation under section 4663(a), the report may not be relied upon unless it also constitutes substantial evidence.


link to official decision: http://www.dir.ca.gov/WCAB/2005-EB-4.pdf

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Almaraz and Guzman case finds AMA Guides can be Rebutted.

Mario Almaraz (Recent en banc decision February 3, 2009)
v.
Environmental Recovery Services (aka Enviroserve);State Compensation Insurance Fund

-and-

Joyce Guzman
v.
Milpitas Unified School District, Permissibly Self-Insured;Keenan & Associates

ADJ1078163 (BAK 0145426) - Marion AlmarazADJ3341185 (SJO 0254688) - Joyce Guzman
74 Cal. Comp. Cases

The Appeals Board held in substance that: (1) the American Medical Association (AMA) Guides portion of the 2005 Schedule is rebuttable; (2) the AMA Guides portion of the 2005 Schedule is rebutted by showing that an impairment rating based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability; and (3) when an impairment rating based on the AMA Guides has been rebutted, the WCAB may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides.
This holding involves the application or interpretation of Labor Code section 4660(c), which continues to state: "This schedule … shall be prima facie evidence of the percentage of permanent disability…." The Appeals Board has previously held in prior en banc decisions in Costa I (71 Cal.Comp.Cases 1797) and Costa II (72 Cal.Comp.Cases 1492) that, pursuant to this section and case law, the percentage of disability resulting from the 2005 Permanent Disability Rating Schedule is rebuttable. This decision discusses how the AMA Guides portion of the schedule can be rebutted.

see full decision
http://www.dir.ca.gov/wcab/EnBancdecisions2009/WCAB_EnBanc_AlmarazMGuzmanJ.pdf

Tapia Case- Finds Lien Claimants must proof Charges are Reasonable.

Maria Tapia (Recent en banc decision dated September 17, 2008)
v.
Skill Master Staffing; and Liberty Mutual Insurance Company, SB Surgery Center

ADJ 4564224 (LBO 0322121)
73 Cal. Comp. Cases 1338

The Appeals Board held that consistent with its en banc decision in Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588: (1) an outpatient surgery center lien claimant (or any medical lien claimant) has the burden of proving that its charges are reasonable; (2) the outpatient surgery center lien claimant’s billing, by itself, does not establish that the claimed fee is “reasonable”; therefore, even in the absence of rebuttal evidence, the lien need not be allowed in full if it is unreasonable on its face; and (3) any evidence relevant to reasonableness may be offered to support or rebut the lien; therefore, evidence is not limited to the fees accepted by other outpatient surgery centers in the same geographic area for the services provided.

See full decision
http://www.dir.ca.gov/wcab/EnBancdecisions2008/2008-EB-4.pdf

Boughner en banc Solidifies New 2005 PDRS Are Presumptively Valid

Scott Boughner (Recent en banc decision June 2, 2008)
v.
CompUSA, Inc.: and Zurich North America
(WCAB No. SFO 0491230)


The Board held that the applicant did not carry his burden of demonstrating that the adoption of the 2005 Permanent Disability Rating Schedule (PDRS) by the Administrative Director of the Division of Workers’ Compensation was arbitrary or capricious, or inconsistent with Labor Code section 4660(b)(2), and therefore that he failed to rebut the presumptive validity of the 2005 PDRS.

See full Decision: http://www.dir.ca.gov/wcab/EnBancdecisions2008/2008-EB-1.pdf

Wilkinson No Longer Applies, Doctor Must Apportion to Cause

Dianne Benson, (December 13, 2007 en banc decision)
v.
The Permanente Medical Group,Permissibly Self-Insured; Athens Administrators (Adjusting Agent),
(WCAB No. OAK 0297895 & OAK 0326228)


The Board held that the rule in Wilkinson, (i.e., basically allowing a combined award of permanent disability in successive injury cases,) is not consistent with the new requirement that apportionment be based on causation and that, therefore, Wilkinson is no longer generally applicable. The Board must determine and apportion to the cause of disability for each industrial injury. The Board noted that consideration must be given to all potential causes of disability, whether from a current industrial injury, a prior or subsequent industrial injury, or a prior or subsequent non-industrial injury or condition. It was observed, however, that there may be limited circumstances, not present in these cases, where the evaluating physicians cannot parcel out, with reasonable medical probability, the approximate percentages to which each successive injury causally contributed to the employee's overall permanent disability. Under those limited circumstances, a combined award of permanent disability may still be justified.
The holding as applied in these cases resulted in separate awards of permanent disability. This opinion involved an interpretation of Labor Code §§4663 and 4664(a) as enacted under SB 899 and the impact on prior legal principles.



View PDF version of case

http://www.dir.ca.gov/WCAB/EnBancdecisions2007/2007-EB-9.pdf