Lien claimants have the burden of proof by a preponderance of the evidence and may be sanctioned for frivolous actions

This is an EN BANC decision of the Workers’ Compensation Appeals Board (WCAB)

This is a very significant case for workers’ compensation principles.

The applicant suffered compensable injuries to his spine and lower extremities in 2002 and 2003. The defendant settled the case by compromise and release in 2005.

In 2009 the lien claimant filed a notice of appearance. In 2010 lien claimant filed an original lien claim. In 2011 at a lien conference the lien claimant listed as its exhibits a health insurance claim form and two MRI reports.

At the trial the parties stipulated that applicant “claimed” injuries. No witnesses testified. Lien claimant submitted an insurance form that listed dates of service, procedure codes and treatment charges. The Workers’ Compensation Judge (WCJ) found lien claimant failed to carry its burden of proof and issued a take nothing.

On appeal the WCAB reviewed prior cases and Labor Code Sections 3202.5 and 5705. They determined the lien claimant must prove by a preponderance of the evidence the validity of their lien. If not they may be sanctioned under Labor Code Section 5813.

Applicant who moves out of state has trouble finding primary treating physician

This is a non published case of the Court of Appeal

This is a very significant case for workers’ compensation principles.

The applicant suffered a compensable injury to her back in 2000. She had back surgery in 2004 which was unsuccessful. She has been unable to work since and has chronic pain 24 hours a day.

The applicant moved to Maryland. The applicant was declared permanent and stationary, but needed further medical treatment.

The applicant who was in pro per had difficulty finding a treating physician that would treat her under the California Workers’ Compensation guidelines.

The appellate court looked at Labor Code sections 4600 and 4610. They indicated the applicant did not comply with Labor Code section 4600, and therefore denied the defendant the utilization review process of Labor Code section 4610.

The appellate court was frustrated with the case. “Frustration seeps from this record. The injured worker, the employer, and the judge have endured one fight after another, one hearing after another.” The appellate court left it by indicating it is up to the parties to find a new treating physician. They indicated the Workers’ Compensation Judge (WCJ) cannot come up with creative solutions to solve the issues within the confines of a highly regulated system in this case.

The case was remanded.

Payment of temporary disability for compensable consequence claimed may not be allowed

This is an Opinion and Order Granting Reconsideration

This is a very significant case for workers’ compensation principals.

The applicant suffered a compensable injury to his hands and wrists. The applicant then received temporary disability benefits.

The applicant suffered a separate injury to his right shoulder. The Worker’s Compensation Judge (WCJ) found the right shoulder to be a separate injury and awarded a separate 104 weeks of temporary disability.

Defendant filed a petition for reconsideration alleging that the second injury was a compensable consequence of the first injury and therefore, there should be no second 104 weeks of 104 weeks of temporary disability.

The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ citing Easterman v. Bradley Friedman, M.D., Travelers Insurance Company and Gee v. WCAB. The applicant is not entitled to a separate 104 weeks of temporary disability for a compensable consequence. The WCAB rescinded the Order of the WCJ and substituted its own Order in the place of the WCJ Order.

The applicant was only allowed one 104 week period of temporary disability. This case was defended by Samuelsen, Gonzalez, Valenzuela & Brown.

Payment of temporary disability for compensable consequence not claimed may be allowed

The applicant suffered a  compensable injury to the right shoulder in 1999.  The applicant entered into a Stipulated Request for Award.  The applicant filed a timely petition to reopen in 2004.

The applicant claimed new and further disability and a compensable consequence to the left shoulder.  In 2009 the applicant was awarded temporary disability for both shoulders.

The applicant’s shoulder problems became permanent and stationary in 2011.  At a hearing the applicant asked for further temporary disability (TD) based on cervical problems that were diagnosed in medical reports as a result of the original injury.

The defendant disputed and the Workers’ Compensation Judge (WCJ) agreed indicating that the applicant had never alleged injury to his neck and denied TD.

The Workers’ Compensation Appeals Board (WCAB) reviewed and agreed with the WCJ. The appellate court reversed and indicated that the cervical condition could be part of the new and further claim and TD owed.

Therefore, the case was remanded to the WCJ for further hearings.

Payment of temporary disability for attending medical exam does not trigger 104 week cap rate

The applicant suffered a compensable cumulative trauma injury. The applicant continued to work unrestricted duties at the employer. The applicant was sent to a panel Qualified Medical Examiner (QME).

The employer paid the applicant temporary disability for attending the QME appointment on September 11, 2007.

The applicant continued working until he was taken off work. He started collecting temporary disability (TD) March 17, 2009. In September 2009, the employer discontinued TD claiming the two year statute of paying TD had been reached.

The applicant filed for a hearing and the Workers’ Compensation Judge (WCJ) found the payments commenced in 2007 and the employer could discontinue in 2009.

On petition for reconsideration the Workers’ Compensation Appeals Board reversed and indicated that attending a medical exam alone does not commence the payments of TD.

The appellate court agreed and stated this payment is more of a med-legal payment.

Statute of Limitations interpreted that only filing is necessary not service

The applicant was injured on August 25, 2008 and died from the injury on September 8, 2008. An application for adjudication of claim was filed on September 10, 2008. A petition for serious and willful misconduct (S&W) was filed with the Workers’ Compensation Appeals Board (WCAB) on August 20, 2009. It was never served on the employer.

Two and half months later applicant filed an amended S&W and served it on the employer. The employer claimed it was not timely since they were not served within one year with the original.

At trial the Workers’ Compensation Judge (WCJ) ruled that the filing was sufficient since the delay in serving was not sufficiently egregious. The employer filed a petition for reconsideration and the WCAB agreed with the WCJ.

The appellate court reviewed Labor Code section 5407 and section 4553. Labor Code section 5407 states the claim must be filed within one year. They also reviewed the cases of Cuadra and McGee to determine that the one year rule means filing of the application, not both, filing and service. They indicated that the lack of service did not mislead or prejudice the employer. Thus, the adequacy of notice must be measured by whether the employer was mislead or prejudiced.

Non-Medical Provider Network physician reports are admissible

This case has already been the subject of two Workers’ Compensation Appeals Board en banc decisions. It has now been decided by the Court of Appeal.

Applicant was treating within the Medical Provider Network (MPN).  Applicant asked for a change of treating physicians. Applicant asked for a physician within the MPN. Applicant started treating with a physician not within the MPN.

The reports of the non-MPN physician were not admitted into evidence. This resulted in the two en banc decisions and this appellate case.

The court of appeal looked at Labor Code section 4616.6 and the Tenet/Centinela Hosp. Medical Ctr. V WCAB (2000) case.

They reviewed multiple sections of 4616.6 which deals with MPN physicians and procedures.   They indicate that the Legislature  did not intend to exclude all non-MPN medical reports pursuant to   section 4616.6.

They indicate that if the legislature would have intended to exclude reports  they would have said so. They did not exclude all reports.  The court of appeal also indicated that Tenet did not stand for that principle either.

Therefore, the reports are admissible.

How many depositions of the applicant may you take in one case

This is a panel decision which ordered sanctions against the insurance carrier and the defense attorney for engaging in bad faith and frivolous actions.

The defendant took a deposition of the applicant. At the end of the deposition the defense attorney said he had no more questions.

Four years later the defendant wished to take a second deposition. Applicant’s attorney objected and requested a protective order and sanctions under Labor Code section 5813 and Code of Civil Procedure 2023. The defendant filed a petition to compel the deposition. The Workers’ Compensation Judge (WCJ) ruled that the defendant was not entitled to a deposition in that code of Civil Procedure Section 2025.610 only allows one deposition.

Applicant requested sanctions and attorney fees for having to fight the deposition and the WCJ awarded $15,610 in attorney fees and a penalty of $2500.

Defendant filed for reconsideration and lost. The Board agreed that once the record is closed that the defendant is only entitled to one deposition. There are other ways in which to complete discovery.

The Court Of Appeal indicates who must bear the loss for a stolen check

This is a very significant case for workers’ compensation principles.

This is a published decision of the Court of Appeal. The applicant was employed as a laborer when he injured his back. The applicant authorized his attorney to sign legal documents on his behalf. The applicant moved several times during the pendency of the claim.

The applicant attorney settled the claim and signed the Compromise and Release (C&R) on behalf of applicant. The C&R had an incorrect address for the applicant. The settlement was approved with the incorrect address.

The employer mailed a check to the applicant to the incorrect address listed on the C&R. The check was fraudulently endorsed and cashed at a check cashing store. The applicant never received the check.

The case went to Trial before a Workers’ Compensation Judge (WCJ) on the issue of nonpayment. The WCJ ordered the defendant to issue a new payment. The defendant filed a Petition for Reconsideration which was denied.

The Appellate Court looked at the Uniform Commercial Code and determined the payee never became the holder of the check. Therefore, the issuer of the check remains liable to the payee. The employer had to issue a new check to the applicant.

The Workers’ Compensation Appeals Board approves a huge settlement for traumatic injury

This is a very significant case for workers’ compensation principles.

This newsletter usually only reports on cases decided in California. The content of this newsletter is to report on a reputed settlement of 8.9 million dollars by way of a structured settlement.

Apparently the applicant fell from a scaffold and his head struck the ground. He suffered a mild traumatic brain injury and a multiple personality disorder. The applicant was only 18 at the time of the injury. The applicant also experienced auditory hallucinations that included hearing human voices.

There were multiple diverse medical opinions. The applicant needed constant medical care and there was an issue of whether he would need home health care versus a rehabilitation facility.

The significant value of the case was in future medical care due to the applicant’s young age at the time of injury. The structure settlement was designed to pay money to a conservator for the applicant’s care.

In high value cases, structure settlements are a value to all parties.

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