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While this decision is unpublished, it should provide ammunition for the employers as the California Supreme Court prepares to finalize its review of the Duncan case, a Sixth District case in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.