CLIENT BULLETIN HOLIDAY EDITION 2018
By: COREY INGBER
We wish you and your families the utmost joyous of holidays and for a healthy and prosperous upcoming New Year.
At least compared to years past, 2018 has been relatively quiet and steady with respect to reforms, rules and major case decisions. Or perhaps it merely seems that way. For the new year however, we offer some practice tips but without a lot of narrative, since by this time of year, we all need some relief from the never- ending onslaught of reading materials. Here is a quick summary:
DWC ADMINISTRATIVE ACTIONS
- DWC announces posted changes in the OMFS effective for services rendered on or after 01/01/2019 https://www.dir.ca.gov/dwc/FeeSchedules/Physician/PhysicianFeeSchedule/PhysicianFeeSchedule2019/Text-of-Regulations/Text-of-regulations-underline.pdf
- DWC: There are no current rule makings
- Criminally Charged Providers: The Dept. of Industrial Relations last updated their list 11/27/2018. https://www.dir.ca.gov/Fraud_Prevention/List-of-Criminally-Charged-Providers.pdf
COURT OF APPEAL RE: APPORTIONMENT
CITY OF PETALUMA v WCB (LINDH): This very favorable decision was just rendered by the 1st District Court of Appeal on 12/10/18. It reiterates the prior holdings related to the apportionment statute (Escobedo, Yeager, Brodie, City of Jackson) that Labor Code §4663 requires apportionment where the disability resulted from both nonindustrial and industrial causes. The facts of this case involved a police officer with a history of migraine headaches suffering a blow to the head. As a result he lost all vision in his left eye. The QME diagnosed an underlying condition (vascular spasticity) resulting in poor blood circulation to the left eye that prior to the injury was asymptomatic. The QME found that 85% of his disability was apportioned to this prior condition. The trial judge did not award this apportionment stating the migraines and pre-existing condition were merely “risk factors.” The WCAB upheld the trial judge.
The Court of Appeal overturned the WCAB stating they confused causation of injury with causation of disability. The underlying condition did not represent a “mere risk factor” and the pre-existing congenital condition went beyond being a risk factor to being an actual cause of the disability.
There is no merit to the arguments made by applicant’s bar that reflects the old laws of apportionment: i.e., there is no requirement that an asymptomatic pre-existing non-disabling contribution that contributed to the disability would, alone, have become manifest and result in disability; there is no requirement that a pre-existing condition must cause disability prior to the DOI.
WCAB EN BANC DECISIONS
- PEDRO HERNANDEZ v. ZURICH: “WHAT A DIFFERENCE A DAY MAKES….” Lien claimant had until 07/01/2017 within which to file the newly required declaration supporting lien under Lab C 4903.05(c)(1) and (2), however that day was a Saturday and the WCAB offices were closed. Lien Claimant filed on Monday, 07/03/2017. The WCAB held that the filing of their declaration was in fact timely and that the civil statutes provide that when and act or response must occur by a date certain and that date falls either on a weekend or holiday, then the party has until the next business day within which to comply.
- SANDAB SUON v. INSURANCE COMPANY OF THE WEST: “Information v. communication….” This issue arises often when parties are contesting each other’s “communications” to the AME or PQME. This case stands for the propositions that disputes over what is deemed “information” to the PQME are to be adjudicated by the WCAB, if the parties cannot otherwise resolve the issue. The case also deals with medical records being “information” and requiring opposing party to object within a reasonable time period. Removal is the remedy for challenging a decision dealing with disputes over what information to provide the PQME
OTHER 2018 CASES OF INTEREST &/OR SIGNIFICANCE
- DYNAMEX OPERATIONS V SUPERIOR COURT OF LA (2018) 4 CAL 5TH 903: A wage & hour class action civil case in which CA Supreme Court adopted a new, far more broad and simple test in determining the employee/employer relationship. The workers comp community speculates that the same test will apply to workers compensation cases and supersede the longstanding Borello decision which set forth a plethora of factors in determining whether a worker was an “employee” or independent contractor in a workers compensation case.
- COUNTY OF SAN DIEGO V PIKE (2018) 21 CAL APP 5TH 1: The Court of Appeals determined that temporary disability benefits cannot be awarded after 5 years from the date of injury, even if a timely Petition to Re-open for New & Further Disability is filed. The court determined that the language of Labor Code 4656(c)(2) precludes issuance of any such benefits.
- ZUNIGA V WCAB (2018) 19 CAL APP 5th 981: The constitutionality of IMR was upheld. The confidentiality of the reviewer’s name did not violate due process and was not required.
- SUTTER SOLANO MEDICAL CENTER V WCAB (2018) 83 CAL COMP CASES 381: A writ denied case, the applicant self-procured surgery despite UR and IMR denials, and the defendant was still held liable for indemnity benefits.
- CA DEPT OF CORRECTIONS V WCAB (2018) 83 CAL COMP CASES 1060: Writ denied. Prison inmates are not precluded from receiving job displacement vouchers.
PRACTICE TIPS AND REMINDERS
- APPORTIONMENT: Most physicians are still using the “old” apportionment analysis and few really nail it right to “causation.” And sometimes the Judges still do not understand apportionment to causation as reflected in the above City of Petaluma case. This can become the “Achilles Heel” when critically analyzing a medical report. Also, remember if you have a prior stipulated award, it is recommended that you file that award in the pending case, together with a request the WCAB take judicial notice, since the “existence of that prior award” is a burden for the defendant to establish, in order to support apportionment under Lab C 4664. Also, in reviewing medical reports from a PQME or AME, I always start with the apportionment section first. That tells me whether the rest of report is strong, weak or otherwise deficient.
- THE MPN IMR: “The Other IMR” Residing within the MPN statutes and Administrative Rules (Lab C 4614.4; 8 CCR 9768.1)) is the so-called “2nd and 3rd opinion provisions, under which applicant can obtain a second and third opinion from another physician, within the MPN, should he/she object to the diagnosis, diagnostic service or treatment recommendation of the PTP. Applicant can request IMR within the MPN system and less than 8 CCR 9768.9(d) can also request an in-person examination. This sets this apart from the regular UR/IMR system. Some applicant law firms are skipping the 2nd and 3rd opinions and going straight for the actual examination. Watch out for this since it can look confusing, based upon their cover letters. Be careful and object, if they have not followed the steps and time lines for making the objection to the MPN/PTP and then actually getting a second and third opinion
- CHECK EAMS: If there has not been any substantial activity on your litigated claim for months, you might want to check EAMS. That will give you any update on recently filed documents and it may also come up with a new subsequent claim
- COURT CALL: The WCAB permits the use of Court Call, though it is actually up to the individual Judges as to whether they will utilize the service. We encourage the selective use of Court Call, especially for Status Conferences and particularly when dealing with the “mill” applicant law firms, who set multiple matters, so defense counsel is often left waiting for hours, while the applicant’s attorney shuttles from hearing room to hearing room. But it should be used selectively and on a case-by-case basis. It is preferable for Status Conferences. Sometimes, we might also appear for an MSC, typically when we know the matter will likely be continued or taken off calendar. Here is the link to Court Call: https://courtcall.com
- STIPULATED AWARDS AND BODY PARTS: Be sure to deal with “every body part” in every stipulation with request for award. You don’t want to “buy” body parts which should otherwise be rejected; but the stipulated award must specially deal with each and every body part in the record. Make a list of all of the body parts and systems and then either stipulate to “no injury” or list as an admitted body part. And, you need to insert an actual rating for every body part producing PD
- Nona Sachs has returned to our firm as an Associate, for which we are very grateful
- As of 01/01/2019, Ingber & Weinberg, LLP will be opening our general liability and subrogation practice. Announcements and further information to come