New Decisions Suggest it’s the QME’s Responsibility to Determine if their Training allows them to Evaluate the Applicant

by Jaskaran S. Gill  (December 5, 2019)

We have all learned the importance of obtaining a Qualified Medical Examiner in a desirable specialty before an applicant’s attorney seeks a more liberal panel in chiropractic medicine or other less desirable specialty. However, occasionally, the applicant’s counsel is able to win the draw to the panel and obtain a chiropractic panel. A crafty defense attorney could often succeed in convincing the Medical Director to issue a replacement panel on the basis that the chiropractic specialty was inappropriate - especially in a claim involving surgery and medications.

For a period of time the Medical Director recognized that a chiropractor could not perform surgeries or prescribe medications, and found it inappropriate for the chiropractic QME to evaluate a claim involving surgeries or medication. In such a case, the Medical Director would review a request for a replacement panel along with the accompanying medical records and often state:

3rd DCA Finds Applicable Interpreter Fee Schedule and Dismisses Liens in Published Decision Obtained by Bradford & Barthel

by Louis A. Larres & John P. Kamin  (November 22, 2019)
California’s current rules and regulations already contain an existing interpreter fee schedule and interpreters who fail to request a second review of carriers’ explanations of review risk dismissal, according to a new published decision from the 3rd District Court of Appeal in a case litigated by the Law Offices of Bradford and Barthel, LLP.

The state appellate court determined that a section of the California Code of Regulations’ section titled “Fees for Interpreter Services” constitutes an interpreter fee schedule. The section is CCR 9795.3, and can be found here online. As a result, interpreter lien claimants must object to defendants’ explanations of review in a timely manner, and risk dismissal if they do not.

What’s Left After A Total Knee Replacement? QME Clarifies: Almost Everything!!!

by Zane P. Uribarri  (October 29, 2019)

Have you ever considered just what the phrase “total knee replacement” means? It seems so self-explanatory that any answer must be “well, it means the whole knee has been replaced.”

In reality, we should rename the surgery to “partial bone augmentation” to avoid the confusion that was experienced by an applicant’s attorney during a recent cross-examination of a well-known orthopedic surgeon serving as a PQME on a case where the applicant had a total knee replacement.

New Gig Economy Law Takes Effect In January 2020, But The Fight Is Far From Over

by John P. Kamin (September 27, 2019)

The impact of California’s new legislation aimed at changing how workers are classified will be met with resistance from some of the state’s top tech companies, and ultimately a ballot initiative that could be the talk of the 2020 election.

Gov. Gavin Newsom signed Assembly Bill 5 into law on September 18, which has changed the legal test for determining whether gig economy workers are employees. The bill codified the “ABC Test” from the California Supreme Court decision in Dynamex v. Superior Court, which says that a worker is probably an employee if they provide work that is in the usual course of the hiring entity’s business.

Why is that important? That would mean that these new employees would arguably be subject to workers’ compensation coverage.

In other words, if a worker does not meet all of the following three conditions, then they are an employee for purposes of workers’ compensation law:
  • The worker is free from the control and direction of the hiring entity in connection with the performance of the work;
  • The worker performs work that is outside the usual course of the hiring entity’s business;
  • The worker is customarily engaged in an independently established trade, occupation, or business.
So does that mean that when the bill takes effect on Jan. 1, 2020, that all gig economy workers will – as the San Francisco Chronicle put it - magically transform “into employees, like Cinderella’s coachmen transforming back into mice?”

Vaping Could Play A Big Role in Defending Respiratory Claims

by John P. Kamin (September 20, 2019)

Defendants need to keep reports about the potentially damaging side effects of vaping in mind during the discovery process in cases with allegations of respiratory illness.

In the significant minority of cases involves breathing problems or respiratory failure, it would behoove defendants to be on the lookout for references to vaping during the discovery process.

That means looking for references to injured workers having a history of smoking and vaping in personal medical records, and asking about it during depositions and trial testimony, and asking the applicant’s coworkers if the applicant was a vaper. Often people who are looking to quit smoking cigarettes turn to vaping, and health records tend to show histories of cigarette smoking.

What are some of the recent headlines that have prompted health officials to investigate vaping? Reports of people in their 20s and 30s going to the Intensive Care Unit for respiratory failure, which is described in the article titled “Vaping appears to be making hundreds of people sick. Doctors have no idea why.”

Synergistic or Symbiotic? Addressing Multiple Body Parts, Post-Kite

by Zane P. UribarriJemma S. UribarriLouis A. Larres & John P. Kamin  (September 10, 2019)
Following the 2013 decision in Kite v. Athens Administrators (2013) 78 CCC 213 (writ denied), applicant’s attorneys have attempted to take full advantage of this method of increasing total permanent disability ratings without increasing the level of actual impairment allocated to their clients. The way they have been doing this is by asking doctors to add permanent disability ratings for various body parts, rather than combining the PD ratings with the Combined Value Chart (CVC) as indicated in the 2005 Permanent Disability Rating Schedule (PDRS).

This is important for defendants because combining PD values via the CVC chart tends to result in lower PD ratings. The CVC chart is part of the 2005 PDRS, which is presumed by California law to be correct.