‘TWAS THE NIGHT

As our calendar year comes to an end, we hope that you all reflect on the promise that 2022 has brought to each of our lives.  Throughout the last year, we’ve adapted, persevered and grown together in ways we never have before.

With the holidays upon us and the new year just around the corner, our gratitude and hope for each of you remains the same.  We wish you all a Happy Holiday and New Year!

DWC ANNOUNCES TEMPORARY DISABILITY RATE INCREASE FOR 2023

On November 17, 2022, the Department of Industrial Relations (DIR) Division of Workers’ Compensation (DWC) announced that the 2023 minimum and maximum temporary total disability (TTD) rates will increase on January 1, 2023, by more than 5%.

The minimum TTD rates will increase from $230.95 to $242.86, and the maximum TTD rate will increase from $1,539.71 to $1,619.15.

Labor Code (LC) Section 4453(a)(10) requires that benefits be increased by an amount equal to the percentage increase in the State Average Weekly Wage (SAWW) in comparison to the prior year.

As noted by the DIR, the SAWW is defined as “the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 in the year preceding the injury.”

It is important to note that injured workers with dates of injury on or after January 1, 2003, who receive life pension payments (LP) or permanent total disability (PTD) benefits are entitled to have their LP or PTD payments adjusted in accordance with the SAWW, pursuant to LC Section 4659(c).

Underpayments of benefits result in penalties, so we encourage claims examiners to review all changes in benefit rates with counsel to ensure the accuracy of the adjustments!

With the increased rate, we can now expect maximum wage earners to accrue up to $168,391.60 in benefits subject to the 104-week cap on temporary disability, pursuant to LC Section 4656(c)(1).

DWC Announces Temporary Total Disability Rates for 2023

PSYCHIATRIC/CATASTROPHIC INJURIES

In the recent noteworthy Board Panel Decision of Douglas Schaan v. Jerry Thompson & Sons, Liberty Mutual (Board Panel Decision), the Workers’ Compensation Appeals Board (WCAB) interprets what constitutes a “catastrophic” injury for the purpose of obtaining increased permanent disability for a psychiatric injury alleged as compensable consequence.

The Applicant, Mr. Douglas Schaan (hereinafter, Applicant) alleged a cumulative trauma type injury through January 8, 2015, to his bilateral shoulders, resulting in multiple surgeries.  Applicant also alleged internal, psych, sexual dysfunction, and sleep issues as compensable consequences of his orthopedic injury.

Applicant subsequently presented to orthopedic, psychiatric and internal Qualified Medical Examinations (QMEs).  Both parties obtained reporting from vocational experts.

The matter proceeded to trial on February 1, 2021.  At trial, Applicant alleged, in part, that he was entitled to increased permanent disability for his psychiatric injury and that he was 100% permanently totally disabled pursuant to the reporting of his vocational expert.

The workers’ compensation judge (WCJ) issued a Findings and Award (F&A) on April 29, 2021.  The WCJ found that Applicant’s injury caused 75% permanent disability (PD).  No PD was awarded for applicant’s psychiatric condition because the WCJ held that he did not sustain a catastrophic injury per LC Section 4660.1(c)(2)(B).

Applicant subsequently filed a Petition for Reconsideration.

In its Opinion on Decision After Reconsideration dated September 20, 2022, the Appeals Board affirmed the WCJ’s F&A.

The court recognized that per Wilson v. State of CA Cal Fire (2019) 84 Cal.Comp.Cases 393 (Appeals Board en banc), the “inquiry into whether an injury is catastrophic is limited to looking solely at the physical injury, without consideration for the psychiatric injury in evaluating the nature of the injury.”  The court considered the Wilson factors, including the intensity and seriousness of medical treatment required by the injury, the outcome of the physical injury when employee is permanent and stationary, the severity of the physical injury, its impact on activities of daily living (ADLs) and whether the injury is closely analogous to one of the injuries outlined in LC Section 4660.1(c)(2) (loss of a limb, paralysis, severe burn, or severe head injury).

The court determined that because Applicant’s multiple surgeries were not sufficiently “serious and life threatening”, his activity of daily life limitations were not sufficiently impacted and his injury was not analogous to those outlined by statute, his injury could not be deemed catastrophic.  As such, he was not entitled to increased compensation because of his psychiatric injury and the F&A was affirmed.

CAUTION/PRACTICE TIP: This is a board panel decision and should be cited with caution.  However, the court appears to confirm that in considering whether an injured worker is entitled to increased compensation for a psychiatric injury alleged as a compensable consequence, the focus is on the physical injury and resulting impact on ADLs, without consideration psychiatric sequelae.

Opinion and Decision after Reconsideration (Schaan v. Jerry Thompson & Sons; Liberty Mutual)

TO MEET AND CONFER: WHAT DOES IT MEAN?

With the filing of a Declaration of Readiness to Proceed (DOR), the moving party shall declare, under penalty of perjury, that they contacted the opposing party in a “good faith” attempt to resolve the issue in dispute prior to the filing of the DORDespite this, most seasoned litigators have received a DOR on a claim where the opposing party made no efforts to meet and confer to resolve the dispute informally.

California Code of Regulations Section 10759(b) requires parties to meet and confer prior to attending a Mandatory Settlement Conference (MSC).  Interestingly, the Appeals Board has not provided a definition of what it means to “meet and confer” prior to an MSC.

For an in-depth analysis on what it means to “meet and confer” pursuant to CCR Section 10759(b), click the link below.

California: Rule 10759(B): What Does “Meet & Confer” Mean?

TWAS THE NIGHT BEFORE CHRISTMAS (MULLEN & FILIPPI STYLE)

The billables were entered in the ledger with care,

In hopes that bonuses would soon be there.

The offices were decked out in red and green,

And everywhere holiday spirit was seen.

And attorneys in sweatpants, only dressed proper waist up,

Took remote depositions with eggnog in their cups.

The early dismissal emails were all sent,

So everyone’s breaks could be well spent.

The dictations and filings all expertly done,

So our wonderful teams could take time for some fun.

We could set aside work and take time for living,

Since AAs stopped sending emails after Thanksgiving.

Our OMs and assistants are truly the best,

And even our attorneys deserved some rest.

No penalty petitions or claim reviews were pending,

As the world slowed down for another year’s ending.

We threw down our papers and shouted with glee,

That seems like a problem for 2023.

So take a break from fighting on our clients’ behalf,

Eat, drink, and be merry, and share a few laughs.

We couldn’t do it without you, you’re really top tier,

Happy Holidays to All, and a Happy New Year!

This Bulletin was written by Steve Rosendin, Associate Partner in our San Francisco office and Jim Cotter, Managing Senior Partner of our Oakland Office  A copy of this Bulletin and the most current twelve months is available on our website at www.mulfil.com/bulletins.

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