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.

Non-IBR Medical Legal Disputes Increasing Litigation, and The Remedial Steps You Need to Take

by Patrick C. Gorman (December 6, 2017)

The Perfect Lien Defense

You receive an odd looking Petition, titled “Petition for Determination of Non-IBR Medical Legal Dispute” from the friendly neighborhood workers’ compensation chiropractor, on a case you settled in 2014. The Petition is requesting $6,000 for a “consultative report”, and a series of diagnostic studies, plus $600 in penalties, $2,651.25 interest “thereon”, and $1,000.00 in attorney’s fees for 2.5 hours spent drafting the Petition. Also accompanying the petition is a Declaration of Readiness to Proceed.

Like any diligent attorney or claims professional, you check the public search function on the DWC website, and find you are set for a MSC on the Petition and DOR, in 21 days. You look at the Party Participant List, on the same page of the Public Search Tool, and perform a lien search. The Chiropractor has not filed a lien, nor has his attorney filed a lien filing fee. You think to yourself “gottcha!, this chiro did not timely file a lien! He also hasn’t paid a filing fee, or served the appropriate lien declaration! The WCAB has no jurisdiction to hear this case!”


by Theodore G. Schneider, Jr. (December 5, 2017)

There was a time when workers’ compensation claims did not involve vocational consultants.

Vocational rehabilitation benefit was adopted under Governor Ronald Reagan and the vocational consultant was introduced into workers' compensation litigation.

Initially, a vocational consultant expert would coordinate a worker’s transferable skills and interests into a vocational plan for on-the-job training or further education to return the worker to suitable gainful employment.

For almost 20 years, vocational consultant duties were limited to returning workers to suitable gainful employment.

LEGISLATIVE RECAP: Quiet 2017 Session Marks the Calm Before the Storm

by John P. Kamin (December 1, 2017)

The 2017 legislative session may have been a relatively quiet one for Californians seeking workers’ compensation reform, but a closer look at lawmakers’ activity shows that significant changes are likely on the way in the next three years.

Many of our clients have shown an interest in curtailing cumulative trauma (CT) claims, which account for 10% of the claims in the Los Angeles and Long Beach regions according the WCIRB. In August 2017, WCIRB Executive Vice President David Bellusci noted “sharp growth” in CT claims.

Assemblyman Adam Gray (D-Merced) introduced AB 221 in January 2017, which would have made it more difficult for applicants and lien claimants to collect on low-value CT claims. For instance, the bill would have barred employer liability for medical treatment if the applicant could not satisfy one of the following four criteria:
  • The treatment was authorized by the employer.
  • The injury to the body part or body parts for which the treatment was provided has been accepted by the employer.
  • The appeals board, after an evidentiary hearing or stipulation of the parties, finds the injury to the body part or body parts for which the treatment was provided was compensable.
  • The employee has undergone an evaluation by a qualified medical examiner, pursuant to Section 4600, or an agreed medical examiner and the evaluating physician has determined that the claimed occupational disease or cumulative injury was caused, in whole or in part, by the employment.
The bill would have also barred defendant liability for medical liens if the amount of the Compromise and Release was less than $25,000.

The 6-month rule

by Farai M. Alves (November 16, 2017)
This article addresses the infamous 6-month rule, what exactly the rule is, how far it can be taken, and how to stop it from being taken too far. It is not the purpose of this article to delve into whether and to what extent a psyche claim can still be alleged post January 2013.

What exactly is the rule?

According to California Labor Code Section 3208.3(d), “no compensation shall be paid … for a psychiatric injury related to a claim against an employer unless the employee has been employed by that employer for at least six months.”

Pardon me if I am stating the obvious, but I should add that the rule requiring at least 6 months of employment applies to both compensable consequence psyche claims and stand-alone psyche claims.

Gamesmanship With Panel Requests

by Nasir F. Adil (November 15, 2017)

Recent trends in workers’ compensation practice have caused attorneys and claims professionals to adapt. Like how Olympic drug testers are seemingly always one or two steps behind athletes who use performance enhancing drugs, Judges and the WCAB are slow to catch on to slick and trendy moves made by attorneys pushing the envelope. To make sure claims are properly defended, it is absolutely necessary for defendants stay on top of certain tactics to avoid falling prey to the predatory moves of our adversaries.

Requesting a panel is often one of the very first steps an attorney, whether representing an applicant or insurance company, does. Selecting panel specialty is an imperative step that often determines case value. Thus, being aware of tendencies and being the aggressor is important to avoid historically applicant friendly specialties, such as chiropractors.