October 22, 20190

Why was Jack O’Lantern’s claim of psychiatric industrial injury found non-compensable? Because it was subject to a Gourd Faith Personnel Defense.While that pun was frightful, we here at Mullen Filippi hope your claims aren’t too monstrous as we head towards Halloween. As always, we’re ready to provide you with legal tricks and treatises to help you with whatever workers’ compensation bogeyman you might be facing.

Mullen & Filippi would like to thank Linda Bryan, an Associate Partner in our Orange office, for her sterling management of the Orange office for many years. She has recently transitioned management duties to Karly Tambara, another Associate Partner in our Orange office. Ms. Tambara joined Mullen & Filippi in 2015 and was invited to be an Associate Partner in 2018. She had variously been a law clerk, paralegal, and hearing representative in the workers’ compensation industry before graduating law school in 2008. We congratulate her on taking on yet another role in the workers’ compensation industry. Ms. Tambara is understandably beloved by her clients for her amazing abilities as an attorney, and we’re certain she will carry on Ms. Bryan’s tradition of excellence now as a manager. Ms. Tambara is also eloquent in describing her love for ice hockey, describing it as “figure skating with sticks.”

Another great addition to the management ranks is Katherine O’Brien, an Associate Partner in our San Diego office who will be taking on management of that office. Ms. O’Brien has a proven track record since entering law school, having earned the CALI Achievement Award for having the highest grade in several of her courses before graduating in 2012. Ms. O’Brien joined Mullen & Filippi in 2016 and was invited to be an Associate Partner by 2018. She has prior management experience with another firm in addition to being known widely as an excellent attorney, and we are excited to have her at the helm of the San Diego office. While her additional duties as manager may take some hours away from her hobbies of reading, fiction writing, and spending time with her cocker spaniel Noel, if history is any precedent, Ms. O’Brien will continue to do it all impressively well.

Congratulations to Brooke Moller, Associate Attorney in our Oakland office on receiving recognition from the California State Bar as a Workers’ Compensation Legal Specialist. To become a specialist in an area of law, an attorney must demonstrate mastery of the subject by passing a written examination as well as have substantial trial, deposition, and other experience in that area of law. Congratulations to Ms. Moller for putting in the effort to receive formal recognition of what her clients already know – she knows her stuff.

Ninth Circuit Court of Appeals: CIGA not Required to Reimburse CMS for Medicare’s Conditional Payment

The Ninth Circuit Court of Appeals recently reversed the U.S. District Court for the Central District of California, finding that the California Insurance Guarantee Association (CIGA), California’s fund for insolvent insurers, was not required to reimburse Medicare for conditional payments of medical costs made by Medicare on behalf of individuals who had workers’ compensation claims administered by CIGA. In California Ins. Guar. Ass’n v. Azar (2019), the Ninth Circuit ruled that the lower court had erred in finding that federal law preempted the California law that prohibits CIGA from reimbursing both state and federal government agencies.

The case arose after CIGA filed an action seeking declaratory relief upon receipt of a demand for reimbursement from Medicare that was claimed as owing under the Medicare Act’s secondary payer language. The Medicare Act generally provides that when payment for medical treatment has been made or can reasonably be expected to be made under a “workmen’s compensation law or plan,” any payments made by Medicare for that medical treatment shall be conditioned on reimbursement. The Ninth Circuit, however, found that CIGA is not an insurance company or primary plan in the ordinary sense, since it has no obligations outside of cases of insurer insolvency. The court, in support of its finding that CIGA need not reimburse Medicare, stated that the Medicare statute was not intended to preempt or override state laws addressing insurer insolvency.

TD Rates to Increase in 2020

According to a bulletin released by the California Workers’ Compensation Institute, the DWC has announced that maximum and minimum temporary total disability (TTD) and permanent total disability rates (PTD) will increase based on a 3.84 increase in the State Average Weekly Wage (SAWW), pursuant to Labor Code 4453(a)(10). That section defines SAWW as the average weekly wage paid by employers to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 of the calendar year preceding the year in which an injury occurs. As a result of this adjustment, maximum TTD/PTD rates will increase to $1,299.43 per week and minimum TTD/PTD rates will increase to $194.91 per week for any injuries after 1/1/2020. The rate changes will also affect TTD rates in existing claims where TTD is paid two or more years after the injury, so claims professionals will need to look at their maximum rate claims to ensure the proper rate is being paid. The adjustments will also affect death benefit maximums, but not minimums, which are set at $224 by Labor Code 4702(b).

Results Round-Up

Christopher Philippides, an Associate Attorney in our Sacramento office, recently won a “take nothing,” after a hard-fought trial. The applicant had alleged an industrial injury to her neck and multiple parts of her right upper extremity. Mr. Philippides elicited testimony on cross-examination that was contradicted by onsite surveillance video and employer testimony. The Findings and Order issued by the Workers’ Compensation Judge indicates that the video surveillance established that no injury occurred in the manner specifically alleged by the applicant in her testimony. The applicant claimed she could not identify herself as the individual caught on video, but the judge stated that “her testimony was subpar.” The employer witnesses all identified the woman in the footage as the applicant. The applicant had produced a report from the QME finding industrial injury, but the judge found that the report was based on a reliance on incorrect information. The QME had in part based his opinion on a lack of documented pre-existing conditions, but the judge found that subpoenaed records did in fact suggest pre-existing conditions as to the body parts in question. Mr. Philippides also produced at trial a 30-page appeal of a denial of long term disability benefits signed by applicant suggesting prior upper extremity injury. Mr. Philippides further produced subpoenaed records of Geico that suggested applicant may have previously filed a false claim of property damage.Ultimately, the judge found applicant to have “problematic credibility,” and stated that applicant “may have suffered a paper cut, if anything.” Credit goes to Mr. Philippides for doing the necessary discovery, pre-trial, and trial work to establish the truth to the judge in the face of an applicant who was clearly willing to stick to her story despite all evidence to the contrary.


This month, Medy Beauchane, Managing Senior Partner in our Chico office, penned a vivid and comprehensive analysis on causation and compensability arising out of a factual scenario presented to him by a client. The scenario involved a worker on a road crew who rushed to the scene of a nonindustrial motor vehicle accident, initially concerned that a member of his crew had been injured. At the scene, he instead witnessed a bicyclist who had already been struck by a car fatally hit by another car as she was recovering and getting to her feet. Mr. Beauchane analyzes from all angles whether the Good Samaritan member of the road crew who rushed to help can sustain a claim for industrial PTSD arising out of the tragic incident. The article is a very good primer on the policy considerations, case law, and statutory interpretation a Workers’ Compensation Judge must engage with in addressing compensability and causation in cases with unusual or unprecedented facts.This article along with others can be viewed by clicking on the following link: https://www.mulfil.com/case-briefs/

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