Albert and Mackenzie Workers' Compensation Law Updates

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

2011-11-14T07:59:00.000-08:00

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

2011-05-16T13:05:00.000-07:00

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

2011-05-16T12:41:00.000-07:00

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.

2009-02-05T16:24:00.000-08:00

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.

2009-02-05T16:16:00.000-08:00

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

2008-06-24T09:07:00.000-07:00

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

2008-01-08T08:50:00.000-08:00

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

Defendant Not Responsible For FEC Cost If Applicant Does Not Prove PDR Is Invalid

2007-06-22T10:02:00.000-07:00

**REMINDER**

Joey M. Costa, (December 7, 2006 en banc decision)
v.
Hardy Diagnostic and State Compensation Insurance Fund
(WCAB No. GRO 0031810 )

The Board held 1) that the applicant had not met his burden of proving that the new Permanent Disability Rating Schedule (PDRS) under Labor Code section 4660 was invalid, and 2) that, as under former Labor Code section 4660, current Labor Code section 4660 allows the parties to present rebuttal evidence to a proposed rating and that the costs of such rebuttal evidence may be allowable.

In this case the FEC was not admitted as evidence!

The applicant has to prove the PDR (permanent disabilty rating) is invalid, which they did not in this case. If they do prove it invalid then the cost of discovery and evidence is considered Med-legal cost.

In this case, the Exhibit 1 was the DFEC report and Exhibit 4 was the DFEC expert testimony. Both were not admitted as evidence, which means in this case they were not deemed med-legal costs. The judge ordered; neither the defense nor the applicant are responsible for the cost of the FEC evaluation and report. The cost would be adjusted paid or litigated by form of lien up to the extent of lien trial.

This is why it is a gamble for VRC specialists to do the DFEC evaluations. They might not get paid if the applicant cannot prove the PDR was invalid.

See complete decision
pdf: http://www.dir.ca.gov/WCAB/2006-EB-6.pdf
or
2006-EB-6 version

Newly Represented Applicant Can Request New Panel QME

2007-06-20T11:14:00.000-07:00

Nelly Romero (2007 significant panel decision)
vs.
Costco Wholesale, permissibly self-insured
Case Nos. OAK 0328271

If an in pro per applicant does not like the panel QME list and they have not had the evaluation yet, they can become represented and request a new panel QME.

The Board held that for purposes of Labor Code §§4062.1(e) and 4062.2(e), an employee has "received" a comprehensive medical-legal evaluation when the employee attends and participates in the medical evaluator's examination. In this case, because the applicant had not attended and participated in (i.e., not "received") an examination by a panel QME scheduled while the applicant was not represented by an attorney, the applicant was entitled to request a new QME panel when the applicant became represented by an attorney. The workers' compensation judge's order for a new QME panel was therefore affirmed.

In other words, if the applicant does not like the panel QME choice they can become represented and go to an AME or get a new QME panel list.

See Decision:

http://www.dir.ca.gov/wcab/SignificantPanelDecisions2007/2007-sp-1.pdf

TTD Commencement Date Determined to be the Date TTD is First Paid, Not the Date TTD is First Owed.

2007-06-19T08:33:00.000-07:00

Valeri Hawkins, (en banc decision, June 13, 2007)
v.
Amberwood Products; and State Compensation Insurance fund
(WCAB No. SAL 0107814)

The Board held that “the date of commencement of temporary disability payment” as used in section 4656(c)(1) means the date for which temporary disability indemnity is first paid, and not the date for which temporary disability indemnity is first owed.

In this case, applicant was injured on July 16, 2004. Defendant’s first payment of temporary disability indemnity was made on May 3, 2005, which covered the period of TD from July 17, 2004 through May 3, 2005 and defendant then made periodic temporary disability indemnity payments through July 14, 2006. The WCJ’s decision concluded that the “period of two years from the date of commencement of temporary disability payment” as provided in section 4656(c)(1) began on May 3, 2005, the date on which temporary disability indemnity was first paid, and not from July 17, 2004, the date for which temporary disability indemnity was first owed. The WCJ’s decision was accordingly, affirmed.

This holding involved an interpretation of an addition to Labor Code §4656 under SB 899.

See full decision:

http://www.dir.ca.gov/WCAB/EnBancdecisions2007/2007-EB-6.pdf

AMA Guidelines VS. Old Rating System En Banc Decision Reversal

2007-05-10T10:04:00.000-07:00

Two (2) en banc decisions that support the Aldi case on AMA Guidelines vs. Old Rating System have been Reversed!

1)
Josh Pendergrass (en banc decision) April 6, 2007
v .
Duggan Plumbing and State Compensation Insurance

The Board, reversing its prior en banc decision of January 24, 2007, held that if the last payment of temporary disability indemnity was made for any period of temporary disability ending before January 1, 2005, then the 1997 Permanent Disability Rating Schedule applies to determine the extent of permanent disability, pursuant to section 4660(d), because section 4061 requires the employer to provide the injured worker with a notice regarding permanent disability "[t]together with the last payment of temporary disability indemnity."

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS rather than under the new PDRS effective January 1, 2005.

View full decision http://www.dir.ca.gov/WCAB/EnBancdecisions2007/2007-EB-5.doc
or PDF http://www.dir.ca.gov/WCAB/EnBancdecisions2007/2007-EB-5.pdf

2)
Joseph Baglione (en banc decision) April 6, 2007
v.
Hertz Car Sales and AIG, Adjusting by Cambridge Intergrated Services

The Board, reversing its prior en banc decision of January 24, 2007, held that in order for the 1997 Permanent Disability Rating Schedule to apply to a pre-1/1/05 injury claim under Labor Code Section 4660(d), the existence of permanent disability must be indicated in either a pre-2005 comprehensive medical-legal report or a pre-2005 report from a treating physician.
This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS, rather than under the new PDRS effective January 1, 2005.

View full decision http://www.dir.ca.gov/WCAB/EnBancdecisions2007/2007-EB-4.doc
or PDF http://www.dir.ca.gov/WCAB/EnBancdecisions2007/2007-EB-4.pdf

Striking from AME Panel of three? Beware of timelines!

2007-02-14T15:15:00.000-08:00

You have a three day window to strike from a panel!

Remember the timelines for striking a doctor from the AME panel of three.

Labor Code 4062.2 (c), within 10 days of the assignment of the panel both parties should confer and attempt to agree to a doctor.

If not agreable, on the 10th day after the assignment of the panel, each party may strike one doctor name from the panel. The remaining QME will serve as medical evaluator.

If a party fails to strike a name within 3 working days of gaining the right to do so, the other party may select any physician who remains on the panel.

This can make a big differnce in a case, so please be aware of the timelines.

Defense can transfer injured worker into MPN regardless of date of injury or award

2007-01-29T09:13:00.000-08:00

Defense has the right to transfer care of injured working into the MPN regardless of date of injury or award.

Sharon Babbitt (en banc decision) January 24, 2007
vs.
Ow Jing dba National Market; and Golden Eagle Insurance Company

The Board held that a defendant may satisfy its obligation under Labor Code section 4600 to provide reasonable medical treatment by transferring an injured worker into an authorized Medical Provider Network (MPN) in conformity with applicable statutes and regulations regardless of the date of injury or the date of an award of future medical treatment.

see complete decision:
http://www.dir.ca.gov/WCAB/EnBancdecisions2007/2007-EB-3.doc

AMA Guidelines vs. Old Rating System; two new en banc decisions

2007-01-29T08:52:00.000-08:00

Two (2) new en banc decisions that support the Aldi case on AMA Guidelines vs. Old Rating System.

UPDATE!!!!!! THESE WERE REVERSED ON APRIL 6, 2007

1)

Josh Pendergrass (en banc decision) January 24, 2006
v .
Duggan Plumbing and State Compensation Insurance Fund

The Board held that the initiation of compensable TD prior to January 1, 2005 gives rise to the Defendant's duty to provide notice pursuant to LC 4061, which then brings the case under the old rating schedule.

See complete decision:
http://www.dir.ca.gov/WCAB/EnBancdecisions2007/2007-EB-1.doc

2)

Joseph Baglione (en banc decision) January 24, 2007
v.
Hertz Car Sales and AIG, Adjusting by Cambridge Intergrated Services

The Board held that because a comprehensive medical-legal report was issued in this case prior to January 1, 2005, the former Permanent Disability Rating Schedule (PDRS) applies under section 4660(d), regardless of whether or not the comprehensive medical-legal report indicates the existence of permanent disability.

See complete decision:

http://www.dir.ca.gov/WCAB/EnBancdecisions2007/2007-EB-2.doc

Remember, TD rates are increased in 2007

2007-01-02T17:07:00.000-08:00

Please note that TD minimum for 2007 is $132.25 per week.
Please note TD maximum for 2007 is $881.66 per week.

***
Also,
Please note that mileage has increased as of 1/1/07 to $0.485 (48.5 cents per mile)
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Yeager Apportionment opinion requires objective support

2006-12-21T16:00:00.000-08:00

Yeager vs. WCAB Opinion

This new apportionment opinion throws a blow below the belt to the Escobedo case.

Escobedo simply allows the doctor to formulate an opinion on apprtionment and base the percent on such.

The Yeager vs WCAB opinion finds that the doctor must back up his opinion with actual medical findings and support. Such as an MRI or when they sight a degenerative problem they must explain in medical terms why that would contribute to the apportionment.

Check out!
http://www.courtinfo.ca.gov/opinions/documents/E038699.DOC

Submit comments for discussion

AMA guidelines vs. old rating; En Banc decision

2006-12-14T08:51:00.000-08:00

Aldi vs. WCAB (EN BANC)

June 21, 2006

This case is in regards to whether the old rating or the AMA guidelines would apply for an injury that occured prior to 1/1/05.

The decision finds that if none of the following apply then the case would fall under AMA guidelines.

1. No comprehensive medical legal report issued.

2. No report by a treating physician indicating the existence of PD

3. The employer is not required to provide a notice required by section 4061 to the injured worker.

See Official opinion en banc decision below:

http://www.dir.ca.gov/WCAB/2006-EB-4.rtf

Please comment below and give scenarios and questions and opinions.

Death Benefit without dependants goes to State "not Estate"

2006-11-28T08:40:00.000-08:00

Six Flags v. WCAB

If person is killed while working and they did not have dependants, then the benefit goes to the state rather than the estate.

Read more..........

http://www.courtinfo.ca.gov/opinions/documents/B184245.DOC

Psyche claim 6 month rule exeption

2006-11-22T10:17:00.000-08:00

Matea vs. The Home Depot

A 2x4 Board falls on an employee in a warehouse full of wood and the court finds it to be a sudden and extraordinary event that allows for the Psych claim to be admitted within the first 6 months of employment.

Read more.........

http://www.courtinfo.ca.gov/opinions/documents/H029661.DOC