Workers Comp Zone


Folks in Sacramento call it The Lake. You may know it as Tahoe.

The nation’s second deepest lake, the summer Tahoe features a handful of snowy peaks and mahogany Gar Wood and Carlo Riva “woodie” runabout boats as well as gorgeous hiking and biking trails and classic watering holes.

It’s here, at nearby Squaw Valley, that the California Applicants Attorneys Association is holding its summer conference. As usual, CAAA has put on a substantively challenging conference.

There was lots of discussion of new QME regs and procedures, Ogilvie, Almaraz/Guzman, COLA cases, Labor Code 4662 cases, 15% bump up/

And as you’d expect, there was much talk of recent CAAA losses: Benson (the demise of “Wilkinson”) & Weiner (the demise of voc rehab)
& Smith/Amar (refusal to award attorney fees to fight treatment denials). Yet, the mood was quite upbeat. CAAA is nothing if not a committed, creative and adaptable organization.

The following are some random paraphrased snippets I’ve subjectively chosen for your reading pleasure:

Assembyman (and Attorney General candidate) Pedro Nava):
You do God’s work…..
The notion that injured workers want to sit home and watch TV is an abomination…..
You have friends in the legislature……..

Brad Chalk (Santa Rosa) & Alex Wong (San Francisco):
Most chapters in the AMA Guides are based on anatomical loss, not
functional loss; when a generic AMA rating does not adequately
reflect how the injury affects the worker, the doctor has a right and
duty to explain how and why. Chalk and Wong referred to many
tables in various chapters which lend themselves to analogies in
rating permanent impairment. They noted the Ferras panel decision
in which a 3 commissioner panel upheld a WCJ decision that found
use of a table in another AMA chapter more accurately described the
impairment (Anthony Ferras vs. United Airlines).

Attorney Skip Tescher:
With Almaraz/Guzman, films and videos are back in…….
We are lawyers….the WCAB is challenging us to be lawyers…….take
the evidence and run with it

CAAA consultant Mark Gerlach:
The board is still misinterpreting…..FEC is not DFEC..Commissioner
Caplane got it right in her dissent in Ogilvie

LA attorney Jack Breslavsky and Redding’s Skip Tescher:
with Ogilvie there may be a “Benson bounce”. The more they “Benson
you” the more you may make due to the way Ogilvie affects the

L.A. attorney Barry Hinden:
in response to a question which asked what to tell clients who asked
whether returning to work would affect their case (in light of the fact
the Ogilvie formula looks at 3 years post injury earnings): no
workers comp award makes up for loss of a job (to wide applause)

Central coast attorney Bill Herreras:
The purpose of apportionment….that the employer is charged with
nothing more and less than it caused………
Unfortunately it appears that “Benson is the law”

San Jose’s Joe Capurro and Sacramento’s Melissa Brown:
We’ll win the apportionment war slowly…..
It’s disturbing that in Benson the law changed but they didn’t allow
for development of the record
In the cases we’ll need to look carefully at whether there is really
one long c/t

Bill Herreras (Grover Beach):
Merv Glow (a CAAA icon and former WCAB commissioner) always
admired losers… it’s easier to claim the laurels of victory than
the yoke of defeat
The appellate approach should look to the purposes of a statute,
not to its absurdity. In smith/Amar the California Supreme Court
makes the statute an absurdity

L.A. attorney Lawrence Silver:
The courts have not been consistent….in Benson the appellate court
was activist and in Smith, strict constructionist

Ron Feenberg (Los Angeles)
Voc rehab is not dead…an existing VR contract is still alive….if you
are in plan, you are still in VR….the WCAB can enforce that contract
and attorney fees withheld pursuant to contract are enforceable

Lawrence Silver (Los Angeles)
In Ogilvie the board misunderstood DFEC…DFEC is looking forward
versus what someone did (which is what RAND looked at)….a big
of contention is the time frame for wage loss studies…RAND
used 3 years
Ogilvie is wrong, but it’s the law…and it will produce a silver lining
so that in some cases the app attorney may argue for Benson

CAAA lobbyist Don Green:
Recommends Attorney General Jerry Brown as gubernatorial
candidate….Brown signed a bill allowing employees to have free
choice of medical treatment and a bill doubling PD benefits…his
WCAB commissioner appointments were outstanding

San Jose’s Art Johnson:
Labor Code 4662 can be used as basis for rating…4662 is a
conclusive presumption, more powerful than a presumption
Under the AMA impairment system you can be closely approaching
death, with organ systems shutting down and yet you are not
100%; but the reality is that you can be totally disabled long
before they put you in the ground in a box

Pasadena’s Jamie Berenson:
It may be easier to try a 4662 case than at 49-99% case….
You have to present what the worker is going through

Under Tremeroux, there’s no apportionment in a 4662 case….
You’ve got to get the judge in the gut on these cases before you
get the judge in the brain….present a compelling case…..
Under 4662 an injury to the brain would encompass psyche
disability as well as head trauma, post concussive disorder etc
Johnson noted the Sally Perez case (VNO 0459871), in which the
WCAB panel upheld a WCJ finding of 100% in the case under Labor
Code 4662, with the WCAB panel citing this part of 4662:
“In all other cases, permanent total disability shall be determined
in accordance with the fact”

L.A. attorney Jack Goldfarb:
This is not for all our cases….those who aren’t going to return to
work are the ones we need to fight over

Attorney Tom Martin (Orange County)
You’re the tough ones….the last 5 years have been disorienting for
many of us
We’re learning how to navigate through the system…we’re light
years from where we were 4 years ago
Remember what Chico Marx says to Margaret Dumont in
“Duck Soup”…who are you going to believe? me or your own

San Jose’s Tom Butts:
Consider asking your own client questions in deposition to get
their story on the record; many QMEs will look at this more
carefully than what is said in a brief office exam

Oakland Judge Lilla Rados:
Put on a prepared case so I can make my decision while it’s fresh
in mind….don’t make me think for months what the outcome
should be

Martin (Santa Ana)
The Foote case and the Farras case give us a clue where the WCAB
will go with Almaraz/Guzman….
We’ve got to “be an army” to challenge doctors that some of these
pathologies didn’t really play a role

As I left the conference, one experienced attorney leaned over to me and whispered that “It’s a mixture of the old and new….what’s exciting is that the trend is away from cookie-cutter justice. We can need to focus on the client and how their injury impacts their functioning”.

Stay tuned.

Julius Young

Category: Political developments