The Rice Decision - Genetics and Apportionment

by Sana Nasser (May 2, 2018)

In April 2017, the California 3rd District Court of Appeals issued a favorable ruling regarding apportionment for genetic factors.

City of Jackson v. WCAB (Christopher Rice)

Rice was employed by the City of Jackson for less than 5 years as a full-time police officer. He sustained injury to his neck during cumulative trauma period through April 22, 2009.

Before undergoing neck surgery, the Qualified Medical Examiner (QME) diagnosed cervical radiculopathy and cervical degenerative disc disease (DDD). In subsequent post-surgical reports, she discussed disability and apportionment, ultimately opining that 51% of the condition was caused by “heredity, genomics, and other personal history factors,” and the remaining 49% was caused by work-related injuries and prior injuries.

Sports Law Department Golf Roundup: Tiger Woods’ Post-Spinal Fusion Comeback is Quite Impressive

by John P. Kamin (May 1, 2018)

In today’s BLOG post by the Bradford & Barthel Sports Department, we’ll touch on why Tiger Woods’ comeback is amazing, the tax reform bill’s impact on golf, the loss of a local orthopedist who was big in the workers’ compensation golfing community, and more. If you need help getting your sports claims back into the swing of things by disputing questionable claims, please click here for more information.

Tiger Woods presented the world of orthopedic medicine with a walking conundrum – can a middle-aged man with four left knee surgeries and four back surgeries compete at a high level in a sport with one of the highest occupational codes?

Woods kicked off the 2018 season of the PGA Tour with a bang with five top 25 finishes in his first seven events, including a second-place finish at the Valspar Championship and then a fifth place finish at the Arnold Palmer Invitational in March. Much of the PGA Tour had written Woods off after his L5-S1 fusion on April 20, 2017, which marked the fourth lumbar spine surgery that the media is aware of.

Golf is difficult on the knees and the low back, as is evidenced by its occupational code of 493. Players who make the cut find themselves walking a minimum 16-20 miles a week, while also doing all the bending and twisting that goes along with taking 1,000-plus swings.

LEGISLATIVE ROUNDUP: New Bill Sets the Stage for Apportionment Battle

by John P. Kamin (April 2, 2018)

A bill targeting the 3rd District Court of Appeal’s published decision in the City of Jackson v. WCAB is headlining the 2018 legislative session and setting the stage for a debate over whether workers’ compensation judges should allow apportionment to genetic and hereditary factors.

State Senator Steve Bradford, D-Gardena, has introduced the latest version of his bill, SB 899, which calls the 3rd DCA’s decision in the City of Jackson v. WCAB “an abhorrent decision that violates legal norms, undermines legislative intent, and abuses the dignity of injured workers.”

Groups such as the California Applicant’s Attorneys Association (CAAA) have been critical of the decision, whereas insurers believe the decision appropriately limits employer liability to industrial injuries only.

In the City of Jackson v. WCAB decision, the 3rd DCA upheld a workers’ compensation judge’s decision that the City of Jackson had proven that apportionment of disability was 49% attributable to genetic factors. The apportionment was for disability to the applicant’s cervical spine.

“Dave’s Not Here!”: The Intoxication Defense in California Law

by Michael P. Burns (March 28, 2018)

Recent concern over the use of opioid medications, whether obtained with or without a prescription, has prompted many employers to carefully examine the sobriety of their employees. Studies have shown that two-thirds of those who misuse or abuse opioids are employed. In addition to affecting productivity, drug and alcohol abuse create concerns for insurers when industrial injuries occur.

Under Labor Code 5705(b), an applicant’s intoxication is a defense to workers’ compensation benefits when the employer can prove the employee’s intoxication was the proximate cause of the injury. Because this defense has been narrowly applied, insurers should be aware of the requirements to prove the intoxication defense.

Bradford & Barthel: The Jack of All Trades

by John P. Kamin (January 25, 2018)

What do a landscaper, licensed vocational nurse, and a grocery store clerk all have in common? All three are at elevated risks for slips and falls, no matter how diligent or careful they are. My colleagues at Bradford & Barthel LLP have seen so many claims across a plethora of industries, we start to see unique parallels across various industries.

For starters, anyone can have a slip and fall, and unfortunately, many people do. The U.S. Bureau of Labor Statistics noted that there were more than 200,000 of them in 2015, and Liberty Mutual reported that these types of falls caused almost $11 billion in national workers’ compensation costs in 2016.

However, the similarities among the industries we represent are more subtle and complex than slippery floors and distracted cell-phone wielding pedestrians.

For instance, the seasonal agricultural workers in the Central Valley and the cameramen at the studios in the San Fernando Valley are both likely to have a large number of employers during any given year. That can result in complicated cumulative trauma claims with numerous defendants, and impact everything from the average weekly wage calculations to contribution disputes.

When is Communication not Communication?

by Jeremy P. West (December 7, 2017)

When is Communication not Communication? When it’s Information. Labor Code 4062.3 and Maxham v. CDCR.

Labor Code Section 4062.3 describes the proper means by which parties are to communicate with and provide information to medical legal evaluators. The statute sets forth different rules relating to how both information and communication are to be provided to the evaluator.

LC 4062.3 defines “information” as: “[r]ecords prepared or maintained by the employee’s treating physician or physicians” or “[m]edical and nonmedical records relevant to determination of the medical issue.” However, what constitutes communication is not specifically defined in the statute.