BulletinCharging Ahead

January 23, 20190

As the New Year enters into full swing, and we return to our routines after the winter holidays, we can anticipate new challenges, new claims, and new decisions.  What big cases will be this year’s Lindh, King, or Fitzpatrick?  As always at Mullen & Filippi, we’ll be reading all of the stories big and small, and dissecting all of the cases from Board level to the Court of Appeals, so that we can continue to provide our clients the analysis and insight needed to effectively handle claims.


The Division of Workers’ Compensation (DWC) announced the increase of the mileage rate for travel expenses from $0.545 in 2018 to $0.58 as of January 1, 2019.  For all dates of injury, the $0.58 rate must be paid for all mileage reimbursement under Labor Code Section 4600.  The rate is tied to the amount allowed by the Internal Revenue Service (IRS).  The IRS announced the rate increase in IRS Bulletin IR-2018-251 on 12/14/2018 and the DWC has posted the updated mileage reimbursement form on its website.  The form can be accessed at the following link:  https://www.dir.ca.gov/dwc/I&A_mileageForm.pdf


Before leaving office, Governor Jerry Brown appointed longtime Oakland based defense attorney Craig Snellings as a Commissioner with the Workers’ Compensation Appeals Board.  With this appointment, all seven positions allotted to the WCAB have been filled.  The WCAB had only been operating with four Commissioners until the recent appointments of Juan Pedro Gaffney and Katherine Dodd in the summer of 2018.   Mr. Snellings most recently worked as in-house counsel for Farmers Insurance since 2014.  He also worked as staff counsel at the State Compensation Insurance Fund from 2006 to 2012 and from 2002 to 2004.  He has also worked at defense firms including Mullen & Filippi; Shaw, Jacobsmeyer, Crain and Claffey; and Adelson, Testan, Brundo, Novell and Jimenez.  The appointment of an experienced attorney, familiar with the major settled and unsettled legal issues in workers’ compensation, will surely inure to the benefit of the entire workers’ compensation community.  Congratulations Commissioner Snellings!


Senior Partner Darlene de Guzman with the assistance of Associate Steven Rosendin obtained a “take nothing” after a trial in September of 2018.  The case involved a Statute of Limitations defense.  The injured worker alleged a specific injury occurring on 12/1/2000, and was fired in 2001.  She suffered medical complications in 2004 requiring amputation of her right leg, but did not file a written claim of injury until 4/4/2017.  The applicant had stepped on a pin, but the Judge in the case found that credible employer witness testimony established that applicant did not lose time and did not require medical treatment beyond first aid, such that the employer was not legally obligated to provide a claim form.  Under Labor Code Section 5401, an employer is required to provide a claim form only when there is knowledge of any injury resulting in lost time or resulting in medical treatment beyond first aid.  Applicant had argued that the employer’s failure to provide a claim form had tolled the Statute of Limitations.  The Judge found that the medical records did not support applicant’s contentions that her later medical complications arose out of the minor incident in 2000 and found that applicant’s claim, filed nearly 17 years after the alleged injury, was barred as untimely.  The Judge further found that defendant was prejudiced in defense of the claim by the long delay under Labor Code Section 5403.

As any long-time practitioner can tell you, asserting the affirmative defense of the Statute of Limitations under Labor Code Sections 5400 and 5405 in workers’ compensation can be difficult as there are a host of exceptions to its application.  Presenting a Statue of Limitations defense requires a very careful development and presentation of the record, and Darlene and Steven diligently presented the documentary evidence and employer testimony necessary for the Judge to find the claim barred.  Congratulations to them and the San Francisco office for this great result.

2019 dwc conference

The DWC has announced the Northern and Southern California dates for its 26th annual educational conference, one of the largest workers’ compensation educational events in the state.  The conference will be held 2/11/2019-2/12/2019 at the LAX Marriott in Southern California and 2/28/2019-3/1/2019 at the Oakland Marriott City Center in Northern California.  There will be a variety of breakout sessions on topics such as new case law, the formulary, ratings, apportionment, social media evidence, the AMA Guides, liens, and UR/IMR.  The DWC Conference is always a great opportunity for members of the workers’ compensation community to learn about ongoing and developing issues in the field and connect with one another.  More information can be found at the DWC website at the following link:  https://www.dir.ca.gov/dwc/educonf26/DWC_EducationalConference.html

This Bulletin was written by Jim Cotter, Associate Partner in our Oakland office.

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