With Thanksgiving and all of its fixings around the corner, Mullen and Filippi would like to express its deepest gratitude to all of our clients, and to our hard working staff and attorneys who move our clients’ claims forward to resolution. Thanks are also owing to all of the stakeholders in the workers’ compensation system, including the Judges, clerks, attorneys, and doctors, who work each day to observe the mandates of the California Constitution and accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character.
Results Round-Up: Riverside is Racking up Results
The attorneys in our Riverside Office have been contributing to the workers’ compensation community and getting results for our clients at a furious pace. Recently, Managing Partner Heather Franco had an article published in the California Lawyers Association’s Workers’ Compensation Quarterly on recent developments in the Exclusive Remedy Doctrine. (Vol. 31 No. 1 2018). Not one to rest on academic laurels, Heather also recently obtained a Take Nothing Findings and Order after a lien trial in the face of 5 liens worth over $38,000 by establishing a properly noticed Medical Provider Network, which barred recovery for the lien claimants. She also recently prevailed at Trial in a case where Labor Code 5814 penalties were sought, and the disposition survived a Writ of Review to both the California Court of Appeals and the California Supreme Court.
Justine Barraza, an associate attorney in the Riverside office, was recently able to have two claims dismissed that had potential value of $50,000 for internal permanent disability alone in a case involving multiple heart and psychiatric conditions found compensable by both an internal medicine AME and a psychiatric PQME. By taking an aggressive approach to litigation, she was able to obtain a dismissal of both claims due to applicant’s failure to respond to discovery demands and prosecute the claims in a timely manner.
Associate Partner Katherine O’Brien, not to be outdone, recently avoided the selection of a new primary treating physician at a Mandatory Settlement Conference in a claim where applicant had returned to work and been discharged from care by his primary treating physician. Using her familiarity with the WCAB decision of Tenet Hospital Medical Center v. WCAB, which stated that an applicant cannot obtain a change in primary treating physician in the case of a discharge from care until a medical legal evaluator opines that there is a need for further medical treatment, Katherine was able to leverage an early Compromise and Release settlement only three and a half months after the file referral.
Elections Have Comp-sequences
With the election of Gavin Newsom as Governor of California, the workers’ compensation community will begin its usual speculation as to what reforms and changes to the system the new leadership might entail. It is worth considering, however, the unexpected direction in which the current governor Jerry Brown took workers’ compensation during his most recent tenure starting in 2010. Brown had largely been perceived by advocates for injured workers as someone who might dramatically expand benefits for injured workers, but he instead attempted to balance the interests of labor and management in an attempt to be proactive about rising costs in the system. Brown signed SB 863, which provided procedural and substantive safeguards against the excesses of lien practice, replaced the DFEC modifier with an across the board 1.4 adjustment (resulting in higher permanent disability in most cases), streamlined delivery of Supplemental Job Displacement Benefit Vouchers (supplemented by the Return-to-Work fund), and implemented UR/IMR and other safeguards against expensive and medically inappropriate treatment. Under Brown a prescription drug formulary was also promulgated. In the last few years, now that the reforms are well established, the average charged rate for workers’ compensation insurance has fallen from $2.97 per $100 of payroll to $2.33, and average rates have fallen 22% since 2014 according to the WCIRB’s State of the System report. With Newsom set to begin his tenure, the one thing history can tell us is that expectations don’t always match up with what comes to pass.
No TTD for Doc Visits
Recently a panel decision issued by the WCAB stated that when an applicant has returned to work, even where they are not yet permanent and stationary and have to miss work in order to attend medical appointments, the employer owes no TTD for that missed time. In Skelton v. Department of Motor Vehicles, the majority of a panel of Commissioners relied on the Lauher case to find that no TTD is owed for time missed due to medical appointments. The California Supreme Court in Lauher had ruled that TTD was not owed by an employer for wage loss due to medical appointments after an applicant had attained permanent and stationary status, and the panel in Skelton has now opined that this is also the case where the applicant is not yet permanent and stationary.
This Bulletin was written by Jim Cotter, Associate Partner in our Oakland office.