2016: “It’s More Deja Vu”

Nov 24, 2015

Every year, or perhaps more appropriately, every season, the defense community gets tested with new salvos coming from at least a few applicant attorneys, who are bent on trying to reshape the contours of the reforms. A few years back, the attacks were focused upon getting their clients out of or away from the MPN’s. There were the standardized form demands for documents, the employer notice of benefits poster, the works. And, yes we still have some of that, especially within the sometimes contentious 90 day delay period. However, for the most part, it seems as if the MPN cycle has given way to UR/IMR. We still see a lot of appeals from UR decisions and notably, a few more actual post IMR appeal petitions to the WCAB. While certainly no flood gate, still the activities are there.

But, what’s next for 2016?

I believe there are two areas which should see an uptick in litigation next year: The first is HOME HEALTH CARE, which should be a rich opportunity for litigation, especially when the HHC Fee Schedule eventually comes out and remember, Lab C 5307.8 provides for the potential awarding of applicant attorney fees. So, expect to see HHC as a big litigated issue next year and beyond.

The other issue is a return of LeBoeuf and the rise yet again of the vocational expert. We are already seeing LeBoeuf challenges made within the context of PD cases at or near life pension and keep in mind that there seems to be a thin and sometimes confusing line between where Ogilvie leaves off and LeBoeuf begins. Be prepared. You should have some good vocational rehabilitation consultants at the ready, who know how to help prepare your defense attorneys to rebut an applicant’s expert, who without much more than a short interview, declares the applicant unemployable and therefore 100% disabled.

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