Brown's Last Legislative Session Features Bills on Apportionment, Breast Cancer, and Peace Officers

by John P. Kamin (August 14, 2018)

Legislation targeting apportionment to nonindustrial genetic factors, janitorial services, peace officers, and breast cancer claims are headlining Gov. Jerry Brown’s last legislative session as he prepares to leave office.

The longtime governor is being term-limited out, and is heading for greener pastures. And I mean that literally – according to this 60 Minutes profile a few months ago, Brown intends to retire to his sprawling ranch in Northern California.

After the legislative session ends on August 31, Gov. Brown will have up to 30 days to sign or veto bills that were approved by lawmakers. Unless those bills are “emergency” legislation, they will take effect on Jan. 1, 2019.

Currently the most important bill that is pending at the moment is Senate Bill 899, which would prohibit doctors from using race, gender, or national origin in determining the percentage of permanent disability caused by factors before and after an industrial injury.

“To Heir Is Human”: Applicant’s Death During a Workers Compensation Claims

by Michael P. Burns (August 8, 2018)

When an applicant dies during a worker’s compensation claim, insurers need to be aware of the requirements for resolving the case. The first misconception is that applicant’s death ends a case. Without a living injured worker, why should benefits be paid? The answer is not as clear as it seems.

Labor Code §4700 states that the death of an injured employee does not affect defendant’s liability for industrial injuries. It also provides that “neither temporary nor permanent disability payments shall be made for any period of time subsequent to the death of the employee.” Thus, the death of an applicant stops payment of indemnity to an applicant. Instead, any “accrued and unpaid” compensation must be paid to an applicant’s dependents. If there are no dependents, they are paid to the personal representative of the deceased applicant, their heirs, or other persons entitled to these benefits. This payment is made without administration (e.g., without the need for probate).

If Human Resource is for Humans, Then Litigation is for Lawyers

by Gerald Kline (July 18, 2018)

Humans are arguably the most valuable and important resource engaged in the furtherance of a company’s goals and success. Nothing gets done without a human involved at some point in the process. Until we are replaced by AI and robots, without humans, business does not get done.

Yet unlike other more traditional resources, humans can be difficult to quantify, bring online and maintain. Most companies recognize both their value and challenges and have a commitment to the management of this resource through human resource departments.

Combatting the Infiltration of Chiropractic PQMEs

by Kimberly R. Wagner (July 11, 2018)
One of the farthest reaching and most litigated effects of SB899 is the alteration of the Panel Qualified Medical Evaluator process. No longer are the days of the “dueling doctors” who were replaced by what soon came to be known as the “QME dance,” both terms calling to mind equally ridiculous cartoonish scenarios of colleagues in white coats (though the latter scene sounding far more civilized). Labor Code §4062 set forth the steps of the dance, with one party objecting, or at least giving the pretense of an objection, to the treating report in order to gain access to the coveted PQME panel. In practice, however, it seems to be rarely enforced that the party issuing said objection be held to it, each party regressing to its most favorable position at the completion of the process.

There has been much litigation as to who has the right to choose the appropriate specialty of a PQME panel (never mind the fact that this is the only opportunity for defendants to obtain a medical-legal opinion aside from initial Medical Provider Network consultations, usually prior to the injured worker’s representation, in contrast to the nearly unlimited chances that an injured worker has to change Primary Treating Physicians). It quickly became evident, particularly in the case of Messele v. Pitco Foods, (2011) 76 CCC 1318, that the party with the privilege to select the panel specialty was whomever could input its request the fastest, relegating such a crucial part of the process to a technicality. The WCAB demonstrated a preference in its subsequent decision of Richmond v. Santa Rosa Tile Co., 2014 Cal.Wrk.Comp.P.D. LEXIS 658 to uphold whatever panel specialty was “properly” obtained first, even if it was somewhat questionable in relation to the applicant’s claim. It would appear that the concern lay at least in part in clearing the backlog of issuing PQME panels, though it is unclear as to whether the WCAB considered a possible side effect of now additional panel requests being submitted under Title 8 Cal. Code of Regs. §31.7 due to the disagreement.

Fear of Paralysis

by Hayden M. Beach (June 21, 2018)

When I was growing up, I loved to read books, especially horror novels. As any good horror reader knows, Stephen King is one of the best. The novel I enjoyed the most as a teenager was Misery. The story focuses on a writer who sustains severe injuries due to a motor vehicle accident and the writer is “saved” by a crazy fan.

I always found it terrifying the writer did not have the ability to get out of the situation, in part due to him being “practically totally paralyzed”. Recently, the noteworthy panel decision Burr v. The Best Demolition & Recycling Co., Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS was released which brought me right back to the fear I felt when reading Misery.

Essentially, the applicant underwent numerous lumbar spine surgeries. Major complications resulted in applicant being wheelchair bound due to his inability to use his lower extremities. The applicant attorney argued applicant was presumed totally disabled per Labor Code Section 4662(a)(3), which states in part that one shall be conclusively presumed to be total in character if the injury results in finding of “practically total paralysis.” As a surprise to many, the court concluded the applicant did not meet the threshold because he was not a quadriplegic or even close to being a quadriplegic.

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.