Petition for Credit: The Easy Part and The Hard Part

by Peter V. Fitzpatrick (December 27, 2018)

INTRODUCTION

After settlement or judgment of a third-party civil case, the employer is entitled to a credit based on the employee’s net recovery in the civil action. (Labor Code Section 3858, Graham vs. WCAB 210 Cal App 3d 499, 503)

THE EASY PART

The defense attorney in the workers’ compensation case can simply contact the applicant’s attorney or civil attorney and request a breakdown of the third-party civil settlement. The breakdown should include attorney’s fees, costs and net recovery to applicant. Then a Petition for Credit is filed with the Board requesting credit based upon the net recovery of applicant/plaintiff in the civil action.

Litigating Modern Psyche Claims Post 1/1/13

by Julie Insisoulath (December 7, 2018)

While we all may have a general understanding of workers’ compensation claims alleging physical injury, some of us are not completely comfortable handling psyche claims. A psyche claim is an injury to the mind, and thus, it is more difficult to assess than most physical injuries. There are specific requirements to bring psyche claims, exceptions to those requirements, as well as multiple defenses to litigate. This article focuses on the recent changes in the law and its ramifications on litigation involving, arguably, valid psyche claims. The potential exposure of liability is often dependent on the date of injury, whether it is before or after January 1, 2013, because the date of injury will determine whether impairment will be awarded, though of course, it is subject to some exceptions.

Rock and a Hard Place - Labor Code § 5814.5

by Sean W. Morrisroe (December 6, 2018)

It’s a bad place to be - between a rock and a hard place. Mick Jagger has sung about it.

You’ve seen defense counsel stuck there at the Board. At a hearing, an aggressive applicant’s attorney demanding a penalty for delayed or refused payment of some benefit post award, and at the same time, demanding reasonable attorneys’ fees for enforcement efforts. Labor Code § 5814.5 creates this proverbial precarious geological hazard. If the defendant doesn’t pay the penalty demanded by the applicant’s attorney, the resulting threat is ongoing litigation with growing, mounting, painful hourly attorney fees.

LEGISLATIVE ROUNDUP: BROWN VETOES ANTI-APPORTIONMENT BILL IN LAST LEGISLATIVE SESSION

by John P. Kamin (November 12, 2018)

Outgoing Gov. Jerry Brown vetoed a controversial bill during his last legislative session that would have nullified a California appellate court decision by limiting apportionment to nonindustrial factors, while approving less controversial bills benefiting peace officers and anti-fraud investigators.

Brown is being ousted from his second term as the Golden State’s governor due to term limits, and will hand the reins over to incoming Gov. Gavin Newsom in January 2019. No stranger to controversy, the outgoing governor has spent most of the last few years in the public eye fighting the likes of President Donald Trump on issues like immigration, health care, and environmental issues.

In the workers’ compensation arena, Brown has had a far more conservative legacy than many lobbyists anticipated. For instance, he has regularly vetoed legislation that would attack defendants’ ability to obtain apportionment to nonindustrial factors, while strengthening anti-fraud efforts through bills like 2012’s Senate Bill 863, which have allowed the state to stay or dismiss liens related to criminal indictments.

During this last session, Brown stayed true to his reputation by vetoing SB 899. (Not to be confused with the 2005 omnibus reform bill bearing the same name.) The 2018 version of SB 899 would have hurt defendants’ ability to obtain apportionment to nonindustrial factors by barring doctors from using race, gender, or national origin in determining the percentage of permanent disability caused by factors before and after an industrial injury.

Hikida and the Importance of a Good Doctor

by Benjamin G. Goldstein (October 15, 2018)

For many years now, employers have been able to rely on the holdings on Brodie v. WCAB (2007) 40 Cal. 4th 1313 and Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 75 Cal.Comp.Cases 113, 2009 Cal. Wrk. Comp. LEXIS 17 to ensure that non-industrial factors would be fully considered where permanent disability is awarded as consequence of industrial injury. Brodie, in particular, ruled that such apportionment would carry through even when disability was assigned due to aggravation and the compensable consequences of an injury.

In 2017, however, the case of Hikida v Workers’ Comp. Appeals Bd., (2017) 12 Cal.App.5th 1249 made its way up to the Second District Court of Appeals, and seems to challenge the manner in which apportionment is utilized in such cases.

Implications of SB 562 on the California Workers’ Compensation System

by Karen P. Mejia (October 15, 2018)

The availability of 24-hour medical care regardless of preexisting conditions, illness, and cause of injury could soon be available in California. With the inception of the Affordable Care Act in 2014 and the subsequent threat of its repeals, healthcare has been at the forefront of the policy debates in California and across the country: in particular, what the future of healthcare would look like in California and the implication that this could have on the California Workers’ Compensation system.

In 2017, California lawmakers made their most recent effort to tackle the healthcare problem with the introduction of the Senate Bill 562. Senate Bill 562, or “The Healthy California Act”, was modeled after the federal legislation, which seeks to implement a single-payer system. A single payer system could essentially seek to do away with private health insurance and replace it with a government funded program.

Extension of An Employer’s Exclusive Remedy Protections to Entities Providing Services on Behalf of the Employer—A Review of King v. CompPartners

by David Kim (October 12, 2018)

In King v CompPartners, the California Supreme Court held that the exclusive remedy provisions under California Labor Code § 3602(a) limit one’s ability to proceed outside the WCAB for injuries alleged to have occurred as a result of the Utilization Review (UR) process.

After his medication Klonopin was not certified through Utilization Review, Kirk King suffered four seizures. King then filed a civil action against UR vendor, CompPartners, and UR physician, Dr. Sharma, alleging that he suffered the seizures as a result of the abrupt termination of his medication. King brought claims of professional negligence, intentional infliction of emotional distress and loss of consortium against CompPartners and Dr. Sharma.

Importance of a Timely Objection

by Alex Chechelnik (October 11, 2018)

One of the most litigated issues at the Workers’ Compensation Appeals Board is the right to request a replacement panel when a physician is unable to schedule within the 60-day timeframe.

The panel decision in Bogue v. County of Solano, 2018 Cal. Wrk. Comp., recently touched on this subject. The WCAB in Bogue, denying applicant’s Petition for Removal, affirmed the trial judge’s finding that a panel qualified medical evaluator’s inability to schedule an appointment for an applicant within 60 days of the applicant’s appointment request did not entitle the applicant to a replacement qualified medical evaluator.

“Clean-Up Legislation” enacted to combat fraud and abuses in lien practices

by David F. Mahjoubi (September 26, 2018)

The California Legislature has taken additional steps to combat fraud and abuses in lien practices not resolved by SB 863. One of the major issues was whether violators of workers’ compensation laws should be entitled to enforce their right to payments on liens. The Department of Industrial Relations (DIR) and its Division of Workers’ Compensation (DWC) announced recently that from 2011 through 2015, $600 million in liens were filed for treatment of injured workers covered by workers’ compensation insurance by providers who had been convicted of crimes or were under criminal indictment. According to the DWC, 17% of all liens filed between 2011 and 2015 were filed by providers with fraud indictments or convictions. In response to these statistics, the Legislature enacted two recent bills (AB 1244 and SB 1160) then followed up with clean-up legislation enacting AB 1422.

Brown's Last Legislative Session Features Bills on Apportionment, Breast Cancer, and Peace Officers

by John P. Kamin (August 14, 2018)

Legislation targeting apportionment to nonindustrial genetic factors, janitorial services, peace officers, and breast cancer claims are headlining Gov. Jerry Brown’s last legislative session as he prepares to leave office.

The longtime governor is being term-limited out, and is heading for greener pastures. And I mean that literally – according to this 60 Minutes profile a few months ago, Brown intends to retire to his sprawling ranch in Northern California.

After the legislative session ends on August 31, Gov. Brown will have up to 30 days to sign or veto bills that were approved by lawmakers. Unless those bills are “emergency” legislation, they will take effect on Jan. 1, 2019.

Currently the most important bill that is pending at the moment is Senate Bill 899, which would prohibit doctors from using race, gender, or national origin in determining the percentage of permanent disability caused by factors before and after an industrial injury.

“To Heir Is Human”: Applicant’s Death During a Workers Compensation Claims

by Michael P. Burns (August 8, 2018)

When an applicant dies during a worker’s compensation claim, insurers need to be aware of the requirements for resolving the case. The first misconception is that applicant’s death ends a case. Without a living injured worker, why should benefits be paid? The answer is not as clear as it seems.

Labor Code §4700 states that the death of an injured employee does not affect defendant’s liability for industrial injuries. It also provides that “neither temporary nor permanent disability payments shall be made for any period of time subsequent to the death of the employee.” Thus, the death of an applicant stops payment of indemnity to an applicant. Instead, any “accrued and unpaid” compensation must be paid to an applicant’s dependents. If there are no dependents, they are paid to the personal representative of the deceased applicant, their heirs, or other persons entitled to these benefits. This payment is made without administration (e.g., without the need for probate).

If Human Resource is for Humans, Then Litigation is for Lawyers

by Gerald Kline (July 18, 2018)

Humans are arguably the most valuable and important resource engaged in the furtherance of a company’s goals and success. Nothing gets done without a human involved at some point in the process. Until we are replaced by AI and robots, without humans, business does not get done.

Yet unlike other more traditional resources, humans can be difficult to quantify, bring online and maintain. Most companies recognize both their value and challenges and have a commitment to the management of this resource through human resource departments.

Combatting the Infiltration of Chiropractic PQMEs

by Kimberly R. Wagner (July 11, 2018)

One of the farthest reaching and most litigated effects of SB899 is the alteration of the Panel Qualified Medical Evaluator process. No longer are the days of the “dueling doctors” who were replaced by what soon came to be known as the “QME dance,” both terms calling to mind equally ridiculous cartoonish scenarios of colleagues in white coats (though the latter scene sounding far more civilized). Labor Code §4062 set forth the steps of the dance, with one party objecting, or at least giving the pretense of an objection, to the treating report in order to gain access to the coveted PQME panel. In practice, however, it seems to be rarely enforced that the party issuing said objection be held to it, each party regressing to its most favorable position at the completion of the process.

There has been much litigation as to who has the right to choose the appropriate specialty of a PQME panel (never mind the fact that this is the only opportunity for defendants to obtain a medical-legal opinion aside from initial Medical Provider Network consultations, usually prior to the injured worker’s representation, in contrast to the nearly unlimited chances that an injured worker has to change Primary Treating Physicians). It quickly became evident, particularly in the case of Messele v. Pitco Foods, (2011) 76 CCC 1318, that the party with the privilege to select the panel specialty was whomever could input its request the fastest, relegating such a crucial part of the process to a technicality. The WCAB demonstrated a preference in its subsequent decision of Richmond v. Santa Rosa Tile Co., 2014 Cal.Wrk.Comp.P.D. LEXIS 658 to uphold whatever panel specialty was “properly” obtained first, even if it was somewhat questionable in relation to the applicant’s claim. It would appear that the concern lay at least in part in clearing the backlog of issuing PQME panels, though it is unclear as to whether the WCAB considered a possible side effect of now additional panel requests being submitted under Title 8 Cal. Code of Regs. §31.7 due to the disagreement.

Fear of Paralysis

by Hayden M. Beach (June 21, 2018)

When I was growing up, I loved to read books, especially horror novels. As any good horror reader knows, Stephen King is one of the best. The novel I enjoyed the most as a teenager was Misery. The story focuses on a writer who sustains severe injuries due to a motor vehicle accident and the writer is “saved” by a crazy fan.

I always found it terrifying the writer did not have the ability to get out of the situation, in part due to him being “practically totally paralyzed”. Recently, the noteworthy panel decision Burr v. The Best Demolition & Recycling Co., Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS was released which brought me right back to the fear I felt when reading Misery.

Essentially, the applicant underwent numerous lumbar spine surgeries. Major complications resulted in applicant being wheelchair bound due to his inability to use his lower extremities. The applicant attorney argued applicant was presumed totally disabled per Labor Code Section 4662(a)(3), which states in part that one shall be conclusively presumed to be total in character if the injury results in finding of “practically total paralysis.” As a surprise to many, the court concluded the applicant did not meet the threshold because he was not a quadriplegic or even close to being a quadriplegic.

The Rice Decision - Genetics and Apportionment

by Sana Nasser (May 2, 2018)

In April 2017, the California 3rd District Court of Appeals issued a favorable ruling regarding apportionment for genetic factors.

City of Jackson v. WCAB (Christopher Rice)

Rice was employed by the City of Jackson for less than 5 years as a full-time police officer. He sustained injury to his neck during cumulative trauma period through April 22, 2009.

Before undergoing neck surgery, the Qualified Medical Examiner (QME) diagnosed cervical radiculopathy and cervical degenerative disc disease (DDD). In subsequent post-surgical reports, she discussed disability and apportionment, ultimately opining that 51% of the condition was caused by “heredity, genomics, and other personal history factors,” and the remaining 49% was caused by work-related injuries and prior injuries.

Sports Law Department Golf Roundup: Tiger Woods’ Post-Spinal Fusion Comeback is Quite Impressive

by John P. Kamin (May 1, 2018)

In today’s BLOG post by the Bradford & Barthel Sports Department, we’ll touch on why Tiger Woods’ comeback is amazing, the tax reform bill’s impact on golf, the loss of a local orthopedist who was big in the workers’ compensation golfing community, and more. If you need help getting your sports claims back into the swing of things by disputing questionable claims, please click here for more information.

Tiger Woods presented the world of orthopedic medicine with a walking conundrum – can a middle-aged man with four left knee surgeries and four back surgeries compete at a high level in a sport with one of the highest occupational codes?

Woods kicked off the 2018 season of the PGA Tour with a bang with five top 25 finishes in his first seven events, including a second-place finish at the Valspar Championship and then a fifth place finish at the Arnold Palmer Invitational in March. Much of the PGA Tour had written Woods off after his L5-S1 fusion on April 20, 2017, which marked the fourth lumbar spine surgery that the media is aware of.

Golf is difficult on the knees and the low back, as is evidenced by its occupational code of 493. Players who make the cut find themselves walking a minimum 16-20 miles a week, while also doing all the bending and twisting that goes along with taking 1,000-plus swings.

LEGISLATIVE ROUNDUP: New Bill Sets the Stage for Apportionment Battle

by John P. Kamin (April 2, 2018)

A bill targeting the 3rd District Court of Appeal’s published decision in the City of Jackson v. WCAB is headlining the 2018 legislative session and setting the stage for a debate over whether workers’ compensation judges should allow apportionment to genetic and hereditary factors.

State Senator Steve Bradford, D-Gardena, has introduced the latest version of his bill, SB 899, which calls the 3rd DCA’s decision in the City of Jackson v. WCAB “an abhorrent decision that violates legal norms, undermines legislative intent, and abuses the dignity of injured workers.”

Groups such as the California Applicant’s Attorneys Association (CAAA) have been critical of the decision, whereas insurers believe the decision appropriately limits employer liability to industrial injuries only.

In the City of Jackson v. WCAB decision, the 3rd DCA upheld a workers’ compensation judge’s decision that the City of Jackson had proven that apportionment of disability was 49% attributable to genetic factors. The apportionment was for disability to the applicant’s cervical spine.

“Dave’s Not Here!”: The Intoxication Defense in California Law

by Michael P. Burns (March 28, 2018)

Recent concern over the use of opioid medications, whether obtained with or without a prescription, has prompted many employers to carefully examine the sobriety of their employees. Studies have shown that two-thirds of those who misuse or abuse opioids are employed. In addition to affecting productivity, drug and alcohol abuse create concerns for insurers when industrial injuries occur.

Under Labor Code 5705(b), an applicant’s intoxication is a defense to workers’ compensation benefits when the employer can prove the employee’s intoxication was the proximate cause of the injury. Because this defense has been narrowly applied, insurers should be aware of the requirements to prove the intoxication defense.

Bradford & Barthel: The Jack of All Trades

by John P. Kamin (January 25, 2018)

What do a landscaper, licensed vocational nurse, and a grocery store clerk all have in common? All three are at elevated risks for slips and falls, no matter how diligent or careful they are. My colleagues at Bradford & Barthel LLP have seen so many claims across a plethora of industries, we start to see unique parallels across various industries.

For starters, anyone can have a slip and fall, and unfortunately, many people do. The U.S. Bureau of Labor Statistics noted that there were more than 200,000 of them in 2015, and Liberty Mutual reported that these types of falls caused almost $11 billion in national workers’ compensation costs in 2016.

However, the similarities among the industries we represent are more subtle and complex than slippery floors and distracted cell-phone wielding pedestrians.

For instance, the seasonal agricultural workers in the Central Valley and the cameramen at the studios in the San Fernando Valley are both likely to have a large number of employers during any given year. That can result in complicated cumulative trauma claims with numerous defendants, and impact everything from the average weekly wage calculations to contribution disputes.