Workers Comp Zone


I’m at the winter Applicants Attorney Conference in San Diego.

Here’s a live blog on “The Most Important Cases”. I’m paraphrasing some comments as they go along (caution: the following are a selection of the opinions of various panelists and may or may not be accurate or represent a consensus among experienced comp professionals)

First up is a discussion of the Hertz (Aguilar) case.

Bill Herreras:
-CAAA is requesting that Aguilar be depublished.
-The court’s treatment of writ denied cases as legal precedent is troubling. Aguilar marks a big departure from LeBoeuf, which looked at the impact of THIS injury on THIS worker.
-If it stands, Aguilar will open the gate for consideration of all kinds of factors: how tall is the applicant? does he have a diploma? Every worker has a different situation with respect to some limitations.
-the applicant attorney in Aguilar has filed a petition for review by the California Supreme Court
-the Aguilar case reminds one of the literacy tests given to blacks so they couldn’t vote, i.e. a racial factor to bar a benefit

Ron Feenberg:
-Aguilar is not an apportionment case, it’s a discrimination case
-employers take people for what they are; Aguilar would punish people for what they are not
-Aguilar would import a “perfect man” standard into comp and takes Labor Code 4663 way too far
-attorneys should refuse to allow applicants to answer depo questions which pertain to this sort of discrimination; let the defendant push the issue at a motion to compel at the board; the board needs to be aware of the ugly side of discrimination that the Aguilar case entails

Joe Capurro:
-Aguilar is an example of a court lacking judicial restraint

Now they’ve moved on to talk about the Sandhagen case, decided by the California Supreme Court.

Melissa Brown:
-we now know that UR is mandatory; the carrier does not have the option to use 4062 (request for a QME) on treatment issues. Only the applicant’s side can use 4062 to request a QME on treatment issue
-the problem is that 4062 really creates delays since it takes forever to go through the QME process. If the treater really wants the worker to get the treatment, they need to work with the attorney to write an adequate report supporting the treatment request

Joe Capurro:
-the applicant can still go to court on the treater’s report if the pre-UR medical report is strong enough; but it’s a strategy concern if you have to go back to get a supplemental treater report clarifying the treating request and in that event will you run into problems at the board?

Ron Feenberg:
-if your treating doctor’s report is substantial evidence, why delay by going through 4062 evaluation

On to Minvielle V. County of Santa Clara (36 CWCR 199):

Bill Herreras notes:
-in Minvielle the worker had received an old award of 27.5% for a 1992 injury. The rating on a later 2004 injury (to the same body part, his back) was 31%; the WCAB panel found under the Kopping case that the defendant had the burden of establishing overlap where there is a prior award

Now on to E&J Gallo vs WCAB (Rubio) 73 CCC 1206 :

Herreras notes:
-the applicant in Rubio denied the existence of an earlier award; the defendant could not locate a copy of the alleged award. The court noted that if a prior award exists, under Kopping vs. WCAB, the defendant has the burden of establishing overlap. Also, the defendant had the burden of proof to establish a prior award and the percentage attributable to the earlier award.

Feenberg adds:
-Gallo may have known the earlier award, but they did not produce the documents for the WCAB to prove the award
-note that there is an old pre AMA system and then under the AMA for a back injury there is ROM and DRE used to rate impairment.
-a doctor may try to retroactively apply current rating language under the AMA to the worker’s condition years ago; but you can not subtract an old ROM rating from a current DRE rating

Melissa Brown:
-how can you measure an old injury under an AMA scenario? In her opinion if you have a prior award, you are in 4664 and you must produce the underlying evidence that was the basis of the award if you want to prove overlap

Mark Kahn and Joe Capurro:
-discussing double-dip apportionment attempts under 4663 and 4664

Ron Feenberg:
-why should defendant get a deduction from current AMA impairment rating for an earlier award where the earlier pre-AMA award was based on subjective complaints, which were a basis for pre-AMA rating

Mark Kahn:
-raises issue of whether WCAB under Tyler and McCune does or does not have a duty to develop record on earlier award if defendant has not bothered to do so

The discussion moves to Barr v. WCAM and SIBTF v. WCAM (Dorigo).

Ron Feenberg:
-these cases involve the issue of costs of presentation of vocational expert testimony on diminished future earning capacity. In Dorigo the court granted the applicant’s petition, finding that the board improperly failed to exercise its discretion to award costs for the fees of the vocational expert.
-the test for reimbursement: at the time the expert’s efforts were obtained, was it reasonable and necessary at the time they were incurred. If not, the costs are not reimbursable

Joe Capurro:
-can you file a petition for costs at the time you obtain the expert’s report? Capurro thinks you should be able to do so but acknowledges differences of opinion on the panel

Mark Kahn:
-not being able to get the costs paid up front puts the woker and attorney at a disadvantage; but the other side of the coin is that the case is not developed at that point.
-one possibility is to try to award the costs subject to later assessing the costs against the applicant if it does not appear reasonable

Bill Herreras:
-if the defendatnt gets an expert report, that should be a factor, so that the applicant has a level playing field and is not at a disadvantage compared to the defendant

Melissa Brown:
-there is a lack of clarity as to what is required to rebut the schedule; don’t get hung up on what is substantial evidence. In her practice the costs are being paid

Joe Capurro:
-it may help to get a doctor to say that he/she wants vocational opinion

The discussion moves to Safaeipour v. Sierracin Corp. 36 CWCR 258.

Ron Feenberg:
-in this case the panel QME had found a compensable psych injury. Afterwards, defendant hired a lawyer, who sought to depose the treating doctor. Defendant sought removal where the judge had refused to allow the defense attorney to depose the treating doctor’s opinion (the treater’s notes were illegible). The WCAB granted removal, ordering further discovery.
-Feenberg notes that the panel QME is not always correct; the parties do have discovery rights

Joe Capurro:
-it’s not clear whether there were due diligence problems but those could dictate a different result if defendant did not pursue its discovery in a timely fashion.

Up for discussion next is L.A. County Professional Peace Officer Association v. County of Los Angeles (73 CCC 1235). The panel notes that in this case the worker sought to sue in Superior Court where the employer dealt with accrued vacation pay differently for individuals on industrial leave than for employees who had non-industrial disability. The case is significant because Labor Code 132 was held to be not the only remedy. The worker could pursue a separate civil remedy.

The panel then mentions Tapia v. Skill Master Staffing, 73 CCC 1339. The lien claimant has the burden of establishing the reasonableness of their charges. An unsupported billing in and of itself does not establish reasonableness, even if the insurer presented no rebuttal evidence.
Judge Mark Kahn notes that the lien claimant misapplied the Kunz case on liens (Kunz is 67 CCC 1588). $22,00 for 3 hours of surgery seemed unreasanable on its face and in Tapia the WCAB upheld an award of $4,700 to the surgery center.

The panel then discusses Medrano v. WCAB, 73 CCC 140

There is a discussion about the survival or non-survival of the “ghost statues” and whether voc rehab survives after 1.1.09

Mark Kahn notes that the VR survival issue is coming up soon in cases in Los Angeles. Some have argued that VR survives via Godinez and the reference to “ghost statutes”. Since Kahn will be sitting as a judge on cases, he does not want to give his current thoughts on whether the statutes extinguished rehab rights that existed before 1/1/09.

Now they discuss Lane V. Zurich American, 36 CWCR 254. Under Lane, the applicant can seek treatment outside the MPN but it will be at his own expense if he was provided adequate notice of the existence of the MPN.

Also under discussion: Ramirez vs. Drive Financial Services & One Beacon Insurance Company, 73 CCC 1324.

Bill Herreras notes this is an important case setting forth the standard for setting penalty amounts under Labor Code 5814(b). The decision noted that the amount of a penalty is discretionary and sets forth a number of factors for the judge to consider in determining a penalty.

Heading toward the end of their program, they move to issues regarding rebuttal of the 2005 PDRS.

Note is made of Rosendin Electric v. WCAB (Bojorquez) 73 CCC 1123, where the board panel suggested a future roadmap on DFEC issues might be coming in future decisions.

Capurro notes that an unpublished panel decision in the Arledge case (not sure if I have spelled it correctly, but it was written by Commissioner Lowe) is significant. CAAA has a copy and will be circulating it. In that case, the app put on DFEC testimony that the 39% rating did not reflect the diminished future earning capacity.The trial judge, who rejected the DFEC rebuttal analsysis, had noted the expert relied on functional capacity information that was not reviewed or commented on by any doctor. The board panel apparently agreed. The Arledge decision may shed some light on how the WCAB will deal with DFEC issues.

That’s the report from San Diego this afternoon.

Stay tuned.

Julius Young
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Category: Political developments