Litigating Modern Psyche Claims Post 1/1/13

by Julie Insisoulath (December 7, 2018)

While we all may have a general understanding of workers’ compensation claims alleging physical injury, some of us are not completely comfortable handling psyche claims. A psyche claim is an injury to the mind, and thus, it is more difficult to assess than most physical injuries. There are specific requirements to bring psyche claims, exceptions to those requirements, as well as multiple defenses to litigate. This article focuses on the recent changes in the law and its ramifications on litigation involving, arguably, valid psyche claims. The potential exposure of liability is often dependent on the date of injury, whether it is before or after January 1, 2013, because the date of injury will determine whether impairment will be awarded, though of course, it is subject to some exceptions.

Rock and a Hard Place - Labor Code § 5814.5

by Sean W. Morrisroe (December 6, 2018)

It’s a bad place to be - between a rock and a hard place. Mick Jagger has sung about it.

You’ve seen defense counsel stuck there at the Board. At a hearing, an aggressive applicant’s attorney demanding a penalty for delayed or refused payment of some benefit post award, and at the same time, demanding reasonable attorneys’ fees for enforcement efforts. Labor Code § 5814.5 creates this proverbial precarious geological hazard. If the defendant doesn’t pay the penalty demanded by the applicant’s attorney, the resulting threat is ongoing litigation with growing, mounting, painful hourly attorney fees.


by John P. Kamin (November 12, 2018)

Outgoing Gov. Jerry Brown vetoed a controversial bill during his last legislative session that would have nullified a California appellate court decision by limiting apportionment to nonindustrial factors, while approving less controversial bills benefiting peace officers and anti-fraud investigators.

Brown is being ousted from his second term as the Golden State’s governor due to term limits, and will hand the reins over to incoming Gov. Gavin Newsom in January 2019. No stranger to controversy, the outgoing governor has spent most of the last few years in the public eye fighting the likes of President Donald Trump on issues like immigration, health care, and environmental issues.

In the workers’ compensation arena, Brown has had a far more conservative legacy than many lobbyists anticipated. For instance, he has regularly vetoed legislation that would attack defendants’ ability to obtain apportionment to nonindustrial factors, while strengthening anti-fraud efforts through bills like 2012’s Senate Bill 863, which have allowed the state to stay or dismiss liens related to criminal indictments.

During this last session, Brown stayed true to his reputation by vetoing SB 899. (Not to be confused with the 2005 omnibus reform bill bearing the same name.) The 2018 version of SB 899 would have hurt defendants’ ability to obtain apportionment to nonindustrial factors by barring doctors from using race, gender, or national origin in determining the percentage of permanent disability caused by factors before and after an industrial injury.

Hikida and the Importance of a Good Doctor

by Benjamin G. Goldstein (October 15, 2018)

For many years now, employers have been able to rely on the holdings on Brodie v. WCAB (2007) 40 Cal. 4th 1313 and Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 75 Cal.Comp.Cases 113, 2009 Cal. Wrk. Comp. LEXIS 17 to ensure that non-industrial factors would be fully considered where permanent disability is awarded as consequence of industrial injury. Brodie, in particular, ruled that such apportionment would carry through even when disability was assigned due to aggravation and the compensable consequences of an injury.

In 2017, however, the case of Hikida v Workers’ Comp. Appeals Bd., (2017) 12 Cal.App.5th 1249 made its way up to the Second District Court of Appeals, and seems to challenge the manner in which apportionment is utilized in such cases.

Implications of SB 562 on the California Workers’ Compensation System

by Karen P. Mejia (October 15, 2018)

The availability of 24-hour medical care regardless of preexisting conditions, illness, and cause of injury could soon be available in California. With the inception of the Affordable Care Act in 2014 and the subsequent threat of its repeals, healthcare has been at the forefront of the policy debates in California and across the country: in particular, what the future of healthcare would look like in California and the implication that this could have on the California Workers’ Compensation system.

In 2017, California lawmakers made their most recent effort to tackle the healthcare problem with the introduction of the Senate Bill 562. Senate Bill 562, or “The Healthy California Act”, was modeled after the federal legislation, which seeks to implement a single-payer system. A single payer system could essentially seek to do away with private health insurance and replace it with a government funded program.

Extension of An Employer’s Exclusive Remedy Protections to Entities Providing Services on Behalf of the Employer—A Review of King v. CompPartners

by David Kim (October 12, 2018)

In King v CompPartners, the California Supreme Court held that the exclusive remedy provisions under California Labor Code § 3602(a) limit one’s ability to proceed outside the WCAB for injuries alleged to have occurred as a result of the Utilization Review (UR) process.

After his medication Klonopin was not certified through Utilization Review, Kirk King suffered four seizures. King then filed a civil action against UR vendor, CompPartners, and UR physician, Dr. Sharma, alleging that he suffered the seizures as a result of the abrupt termination of his medication. King brought claims of professional negligence, intentional infliction of emotional distress and loss of consortium against CompPartners and Dr. Sharma.