Pendergrass and Baglione Reversed! B&B Vindicated!

Pendergrass and Baglione Reversed! B&B Vindicated!
by Donald R. Barthel, Esq.
Baglione Revisited
B&B attorneys have been arguing over these many months that the WCAB commissioners had it wrong in Torres (a panel decision) as well as Pendergrass and Baglione (two 1/24/07 en banc decisions).

It turns out that B&B was right! The panel in Torres v. SDM Precision Products (which included Commissioners Rabine, Brass and Caplane) interpreted Labor Code §4660(d). The issue before the WCAB was whether a comprehensive medical/legal report that issued prior to 1/1/05, had to indicate evidence of the existence of permanent disability in order for the old Permanent Disability Rating Schedule (1997 PDRS) to apply. In Torres, an AOE/COE report was obtained on 3/18/04. It did not find permanent disability. The Panel held that in order for the 1997 PDRS to apply to a pre-1/1/05 injury, it is sufficient that any comprehensive medical-legal report issue prior to 1/1/05. In other words, obtaining an AOE/COE report (even a report that found applicant TTD or determined there was no injury AOE/COE) prior to 1/1/05 would require using the old (and significantly more expensive) 1997 PDRS.

Fight Audit Unit, Save $1,000,000

Fight Audit Unit, Save $1,000,000
by Sherry Dozier
The results are in. We win!

In the B&B Blog, November/December 2006, Volume 2, Number 6 issue in an article entitled "The Audit Unit Is Made Up of People Too", I discussed various strategies we recently developed while assisting a client during an Audit Unit Investigation. We knew the strategies were working, but we had no idea how much money would be saved!

We reduced a $1,200,000 penalty assessment to $55,000! What a difference a few months of diligent preparation and arguing can make! This process was long and tedious, but it was well worth the time and effort.

Fuentes Lives

Fuentes Lives
by Donald R. Barthel, Esq.
 The California Supreme Court, in a unanimous opinion filed on 5/3/07, issued a stunning defeat to the California Applicants' Attorneys Association. The decision (which involved five cases: Brodie/Welcher/Strong/Lopez/Williams) concluded that in cases in which the applicant received a prior permanent disability award, apportionment of permanent disability is calculated by determining the overall percentage of PD and subtracting the percentage of PD caused by other factors, including the prior PD award.

How many options did the court have? This is best illustrated by Nabors v. SCIF, 70 CCC 704, a 2005 en banc decision. In that matter, the applicant had a prior Stipulated Award of 49%. His most recent (and currently litigated) injury resulted in a total of 80% PD. The following were the various potential methods for calculating apportionment:

Formula A: 80% PD - 49% PD = 39% PD ($22,610.00)

Formula B: 461.5 weeks - 234.75 weeks = 226.5 weeks ($38,505.00)

Formula C: $118,795.00 - $42,476.00 = $76,319.00