Archive for May, 2013

Assembly Bill 1309 (Non-CA Sports Injuries) Passes Assembly; On to Senate

More good news from the legislature, dear readers!

Assembly Bill 1309, which would limit California’s workers’ compensation system, with all its generous benefits and cumulative trauma claims, to California professional athletes (locking out players who have played as little as one game in our glorious state), has moved closer to becoming law.  As of last Thursday, the Assembly passed AB 1309 in a landslide 57 to 1, and moving the bill to the Senate, which hopefully pass it with all due speed and send it to Governor Brown for signing.

Your humble blogger has no word one way or the other how “the Big J” will act on this bill if given the chance to sign it into law.  However, whatever Governor Brown’s other virtues or vices, good qualities and bad, he has a proven track record of signing into law workers’ compensation reforms that curb the exploitation of businesses, employers, and insurers.

After all, he reportedly lent his political weight to the passage of SB-863 (for better or for worse, time will tell), and signed several pro-business workers’ compensation laws while vetoing several anti-business ones.  As I’m told that “a trend is your friend,” here’s hoping that the Governor continues to maintain friendly relations with this seeming trend and sign this bill into law once it hits his desk.

What does this mean for Californians?  If the bill passes, we can expect to see less demand on the workers’ compensation system (an entire class of employees, the vast majority of professional athletes), will be barred from burdening California’s workers’ compensation system to recover for injuries sustained outside of California.

Additionally, your favorite panel attorneys will have a bit less work and might be more inclined to refrain from raising their rates for a little while longer as there will be less claims to defend.

And, of course, less money in the pot means less attorneys’ fees and payouts for the applicants bar (my heart bleeds for them!)

Let’s hope for a speedy passage and an immediately-felt effect.

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Sorry, Lien Claimants, Disruptive Behavior Won’t Get Your Trial Postponed

Welcome back from your weekend, dear readers.  I greet you on this Monday morning with the story of a disgruntled lien claimant, becoming ever more disgruntled with each additional infuriating defeat.

The story is that of Beverly Hills Center for Arthroscopic and Outpatient Surgery, lien claimant in the matter of Luis Cardozo v. Koos Fashion.  The basic thrust of this case was that a physician from lien claimant was present with its legal counsel on the date of a lien trial.  The basic facts are as follows:

Lien claimant’s representative was dissatisfied with his representation, apparently because the recommendation for settlement wasn’t high enough (the settlement figure recommended was $325,000).  In the words of the workers’ compensation Judge, “after witnessing [lien claimant representative’s] truculent behavior during the settlement negotiations, the undersigned [WCJ] concluded that [he] voluntarily attended the lien trial merely to disrupt it and delay it so that he could obtain new representation.”

What a Disruptive Doctor May Look Like

What a Disruptive Doctor May Look Like

The lien claimant’s representative wanted the trial continued so he could obtain new counsel and get more dollars through settlement (scrubs aren’t cheap!), but the workers’ compensation Judge refused.  Lien claimant could either settle for the offered (and recommended) $325,000, or take it to trial.  Lien claimant agreed… only to file a petition for reconsideration, removal, and petition for disqualification.

So, dear readers, what could the lien claimant possibly appeal after signing the settlement agreement?  The WCJ’s refusal to grant a continuance, apparently.

The Workers’ Compensation Appeals Board denied the petitions, and the Court of Appeal followed suit.  Next stop, Supreme Court?  And then, perhaps, the United Nations?  After all, a lien claimant’s dissatisfaction with its representation because of the weakness of its case really is a human rights violation, when you think about it.

Don’t let a lien claimant disrupt your trial date with bad behavior either – offer your settlement, if any, and then push for the trial.  A continuance is inappropriate just because the lien claimant wants more money.

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No Automatic Grip-loss Rating without Medical Legwork First

The American Medical Association’s Guide to the Rating of Permanent Impairment, 5th Edition, has two very, very dirty words.  In the less “open-minded” and “modern” venues of California’s workers’ compensation system, an attorney could face sanctions for even thinking them, let alone saying them.  The two dirty words?  “Grip Loss.”

Grip loss is a go-to for upper extremity impairment because it offers the applicant an opportunity to get a maximum recovery for, quite literally, minimum effort.  The less effort exerted by the applicant in performing the grip loss test, the higher the impairment can be assigned as a result of the injury.

The AMA Guides frown upon grip loss, and generally don’t allow the grip loss to be rated in the presence of other impairment to the upper extremity.  For example, if you have an amputation of the fingers or the hand or the arm, you can expect a considerably weaker grip.  (See AMA Guides, Page 507).

Grip loss can be used in “rare” cases, when the other methods of rating impairment do not adequately consider grip loss.

But that doesn’t stop some evaluating physician from disregarding the restrictions of the Guides and uttering the following phrase: “Hocus Pocus, Almaraz Guzmanaus, Alacazam!” and *POOF* triple whole person impairment!

That’s what happened in the case of Angelina Kendrick McGee v. State of California, Department of Justice.  There, the Agreed Medical Evaluator rated grip loss in the presence of carpal tunnel syndrome, without providing “any analysis to justify a departure from the Guide’s limitation of impairment ratings based on grip loss to ‘rare cases.’”

The Workers’ Compensation Appeals Board reversed the workers’ compensation Judge’s findings and award, issuing, instead, a new award which excluded the grip-loss rating.

Now, it’s important to note something here, dear readers.  In days gone by, the workers’ compensation Judge may have elected to “develop the record” and give the applicant’s attorney a chance to solicit additional deposition testimony or perhaps a supplemental report from the AME, allowing him to lay the foundation for an Almaraz/Guzman rating.  But here are some things to remember:

  1. Discovery closes at the Mandatory Settlement Conference;
  2. The party seeking to rebut the AMA Guides bears the burden of proving a rebuttal (magic words have no power before the Workers’ Compensation Appeals Board);
  3. Unless there has been a rebuttal, the AMA Guides should be used on a “straight rating” basis.
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