Does Terminating an Employee "Terminate" Your TD Defenses?

by Don Barthel, Esq.
Familiarity Breeds Contempt
Does this story sound familiar?

The case is accepted, the injured worker (IW) has returned to a modified position and, thus, you have discontinued temporary disability. Life is great...that is, it seemed great until you receive the "nasty gram" from applicant's counsel advising that IW has been terminated and you owe temporary disability (TD) retroactively and continuing!

Do you?

Terminating an IW is just about the surest way of inspiring IW and applicant's counsel to push for the full 2-year TD cap. You can bet your bottom dollar that TD—retro and continuing—will quickly become an expensive, hard-fought issue. What do you need to know to avoid the TD trap?

How Much is a DFEC "Expert" Really Worth?

by Don Barthel, Esq.
We've all seen it... The PD in a case rates to something reasonable and all is well, until applicant's attorney begins to rattle the Ogilvie saber. Either expressly or implicitly, counsel makes known that—unless you concede to some ridiculous demand —AA will retain a "DFEC expert" and stick you with the bill.

Is it time to settle? Get the sword and split the baby?

Heck no!

Don't believe the baloney... you've got (very) little to worry about when it comes to "DFEC expert" bills and liens.


Flipping the Switch: Running B&B from the Cloud (from a KM Perspective)

At Bradford & Barthel (B&B), last year we chose to integrate our business model with Google, specifically the Google Apps collaborative cloud platform. A brave (and/or stupid) move, some have said.


Not 'just' because of the cloud security/functionality argument, but also because of Google's lack of experience in legal (at least on paper). We're told that in our industry, everything must be custom-made for lawyers given the way they work with legal taxonomies and so forth. Also, comparisons to other professional service organizations and how they are run are often few and far between.

Increasingly Cloudy Skies: A Founding Partner's Perspective

Our clients want/deserve/need/demand faster, better, and less expensive legal services. Acknowledgeing this, in 2010, Bradford & Barthel, with 200+ users and 12 offices throughout California began a multi-year implementation of taking the firm to the cloud. The senior management team led the charge leaping to a collaborative cloud computing model. Since that time, the firm has realized tremendous cost savings (via reduced software license agreements, and less required IT and technology infrastructure costs), forced its staff to collaborate on work product (which many now swear they can't live without), and extended the ability to review documents and expedite responses to client requests.


by Mark Fletcher, Esq.
B&B's Managing Partner, Mark Fletcher, announced the promotion of Tahmeena I. Ahmed to "Managing Partner, Client Relations." Per Mr. Fletcher, Ms. Ahmed's experience as Managing Attorney of B&B's largest office, located in Tarzana, for the past decade has prepared Ms. Ahmed for her new role: "ensuring that client expectations are consistently met and exceeded on every file, furthering the development of attorney-client communication and rapport, and providing training and developmental opportunities to our clients."

In response, Ms. Ahmed issued the following open letter:

The Truth, The Whole Truth and Nothing But The Truth aka B&B Sends Applicant "Directly To Jail"!

by Jan Metheny, Esq.
The adjuster's call was exactly the kind of call that excites all defense attorneys who enjoy defeating fraud. Luckily, the call came to B&B and—with the excellent teamwork of the adjuster, carrier, SIU department, investigators, District Attorney and B&B—another "bad guy" got his comeuppance.

An accepted claim filed by a long-term employee, the matter was initially suspicious solely because of the timing; the claim was filed shortly prior to the employer, a car dealership, going out of business. As such, the adjuster kept her eyes and ears open for any other evidence of foul play...and that awareness soon proved invaluable. Research uncovered more red flags, including reports the applicant was a long-time motorcycle racer. Investigations confirmed he was continuing to race and we caught our first major break with film at the track.

Elayne Valdez v. Warehouse Demo Services

by Timothy Rose, Esq.
Elayne Valdez v. Warehouse Demo Services; Zurich North America, adjusted by ESIS, (2011 Cal. Wrk. Comp. LEXIS 55), April 20, 2011

After treating in an established MPN, applicant's counsel designated a non-MPN treating physician who began to actively treat the applicant. After an issue over temporary disability benefits surfaced, applicant's attorney demanded benefits be provided based on the non-MPN reporting. At trial, the WCJ deferred the non-MPN treatment issue listed by the defendants on the Minutes of Hearing, indicating it was not related to TTD.

After the defense lost the TD issue, they filed for Reconsideration, contending the non-MPN reports were inadmissible, and, therefore, there was no substantial evidence to support the temporary disability award. Reconsideration was granted.1

Legal Update: Duncan is "NONSENSICAL"

On December 10, 2010, the Court of Appeal for the Third District reversed the WCAB holding that a cost of living adjustment (COLA) applies commencing January 1 of the year after the injury. See Allied Waste Industries, Inc. v. SCAB (Rojas).

While this decision is unpublished, it should provide ammunition for the employers as the California Supreme Court prepares to finalize its review of the Duncan case, a Sixth District case in which that DCA held that January 1, 2004, is the effective date for COLA in all cases involving injuries occurring on or after January 1, 2003. The California Supreme Court granted review of the Duncan case on March 24, 2010. (See Duncan v. WCAB (2009) 179 Cal. App. 4th 1009.)

Labor Code §4659, subdivision (c) provides: "For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total disability indemnity... shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the state average weekly wage (SAWW) as compared to the prior year..."

Medical Marijuana and LC §4600 aka Are You HIGH?

Medical Marijuana and LC 4600As we all know, in 1996 California's Proposition 215 was the first statewide medical marijuana initiative to pass, also known as the Compassionate Use Act of 1996. Added to the Health and Safety Code, this law permits patients with a valid doctor's recommendation to possess and cultivate marijuana for personal medical use.

How does this legalization of the possession/cultivation of medical reefer impact your duty under Labor Code §4600(a) to provide all treatment that is "reasonably required to cure or relieve the injured worker from the effects of his or her injury..."?

Put more succinctly, if the PTP writes a prescription for pot, are you obligated to help the applicant get high?

Heck no!

"Illegals’" Entitlement to Voucher/PD Increase...To Pay or Not to Pay?

The workers' comp claim you're handling is accepted and, as you conduct your discovery, you learn that the injured worker cannot demonstrate that he/she is legally entitled to work in the U.S., or—at deposition —refuses to answer questions pertaining to "legal status." Are these facts relevant in terms of vouchers and the 15 percent PD "bump down"?

You bet!

If handled correctly, you should not be liable for a voucher! If handled correctly, you should be able to obtain a 15 percent PD "bump down."

Uncle Sam Wants You!

What Are You, Adjustor or Terrorist Hunter?The surprising answer, according to Uncle Sam, is: BOTH!1

Yes, consider yourself drafted to play a role in the defense of America.

Now, you may be asking, how can I be both?2 Turns out national defense is not all Kiefer Sutherland style kicking in of doors and raiding terrorist safehouses!

Consider yourself officially introduced to the Office of Foreign Assets Control (OFAC), the wing of the Treasury Department charged with administering and enforcing trade sanctions.3 OFAC dictates who you can and cannot do with business with. Not surprising, Iran and North Korea are almost entirely off limits4, along with such groups as narcotics traffickers and terrorist organizations.

100 Percent Trouble: The Expensive Future of PD

Disgusted by physicians' misapplication of the AMA Guides for fun and profit? Angered by the flippant manner in which many doctors regularly find a "more accurate" impairment percentage and cover their tracks by citing Almaraz/Guzman? Outraged by the fact that every time you turn around you're hearing from a so-called "DFEC expert" who wants to rebut the DFEC on your dime?

Think you've seen enough PD shenanigans for a lifetime of adjusting?

Think again!

The PD times are a'changing1, and they're getting worse!

The WCAB has paved the way for Applicants to get 100 percent PD awards:

(a) without being 100 percent per the AMA Guides and 2005 Permanent Disability Rating Schedule,
(b) without rebutting the AMA Guides via Almaraz/Guzman, and
(c) without retaining the services of a "DFEC expert." And, via this novel approach, once the 100 percent is awarded, you do not get Labor Code §4664 apportionment...even if there was a prior PD award for the very same
body part(s)!

Daniel Micheal Dailey named Managing Attorney of the Sacramento Office

It is my pleasure to announce that Daniel Michael Dailey is our new Managing Attorney for the Sacramento office. He brings with him a multitude of skills, including administrative strategies, oustanding negotiation talents, and an undying commitment to B&B's clients.

Mark Fletcher is Managing Attorney of Bradford & Barthel, LLP.