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COVID-19 Update from Dietz, Gilmor & Chazen – Executive Order N-62-20, Non-Presumption Claims, and WCAB News

EXECUTIVE ORDER N-62-20, ISSUED AND EFFECTIVE 05/06/2020

  • Covered dates of potential exposure – 03/19/2020 – 07/05/2020.
  • Temporary rebuttable presumption of injury AOE/COE for an employee’s COVID-19-related illness if:
    • The work was performed on or after 03/19/20.
    • The employee was directed by the employer to perform work at a location other than the employee’s home.
    • The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee worked at the employer’s direction.
    • A California-licensed physician made the initial diagnosis, and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.
  • Period to reject claim is shortened to 30 days from date of filing of claim form.
  • If not rejected within the 30-day period, the claim is presumed compensable, unless rebutted by evidence only discovered after the 30-day period.
  • All workers’ compensation benefits, including death benefits, available.
  • Permanent disability is subject to apportionment.
  • If employee has paid sick leave (PSL) benefits specifically available in response to COVID-19, those benefits must be exhausted before any TD or LC 4850 benefits will be due and payable.
  • No waiting period for TD.
  • For TD before 05/06/2020 – If the employee tested positive or was diagnosed with COVID-19 before 05/06/2020, then by 05/21/2020, employee must obtain a certification documenting the period for which the employee was TD and unable to work, and must be re-certified every 15 days thereafter, for the first 45 days after the diagnosis.
  • For TD after 05/06/2020 – If the employee tests positive or is diagnosed with COVID-19 on or after 05/06/2020, the employee must be certified for TD within the first 15 days after the initial diagnosis, and must be re-certified every 15 days thereafter, for the first 45 days after the diagnosis.
  • The physician certifying TD must hold a California physician and surgeon license.
  • The Department of Industrial Relations is precluded from collecting any death benefit payment arising out of claims covered by the Order.
  • The Order applies to workers’ compensation insurers writing policies that provide coverage in California, self-insured employers, and any other employer carrying its own risk, including the State of California.

Tips for Employers:

    • If an employee tested positive or was diagnosed with COVID-19 between 03/19/2020 to the present, after working at the employer’s direction at a location other than the employee’s residence, provide a claim form to the employee as soon as possible, if not done previously.
    • Going forward up to and including 07/19/2020 (14 days after the last date of the Order’s specified exposure period), provide a claim form within 24 hours of obtaining knowledge, from any source, that employee tested positive for or was diagnosed with COVID-19 after working at the employer’s direction at a job site that is not the employee’s residence.

PROVIDING CLAIM FORMS TO EMPLOYEES NOT COVERED BY THE ORDER

  • A blanket approach to providing claims forms during the pandemic is not recommended. An employee is likely to think the form must be completed and filed, even if he or she has not been exposed to the coronavirus.  Once the claim form is filed, a claim is created, which triggers rights and obligations.  The resulting flood of claims would be highly burdensome.
  • Here are some guidelines that should help:
    • A claim form must be provided if an employee asks for one.
    • A claim form must be provided if an employer receives knowledge, from any source, that (1) the employee was diagnosed with COVID-19 and (2) either it is work-related, or the employee is claiming it is work-related.
    • If a claim form is not required to be provided, consider the nature of the employee’s work, the work environment (working remotely?), whether the employee has actually tested positive for the novel coronavirus or been diagnosed with COVID-19, whether the employee has health insurance, and any factors unique to the situation. The facts may weigh in favor of providing a claim form.

Reminder for Employers:

    • Providing a claim form does not mean acceptance of the claim.

COMPENSABILITY OF COVID-19 CLAIMS FILED BY EMPLOYEES NOT COVERED BY THE EXECUTIVE ORDER

  • If the new presumption of injury AOE/COE does not apply to a claim, an employee can litigate injury AOE/COE.
  • Normally, no exposure for WC benefits for non-occupational diseases, which is what COVID-19 is, since the novel coronavirus is found throughout the world and can affect anyone, not just employees.
  • The employee will prevail if there is substantial evidence that his or her risk of exposure to the novel coronavirus was probably higher than the general public’s. (Note: scientific certainty is not required to be proven.)
  • Compensability can extend to injuries from the side effects of medications or procedures used to treat COVID-19, not just injuries from the direct damage wrought by the novel coronavirus.

NON-COVID-19 INJURIES TO EMPLOYEES WORKING FROM HOME WHILE STAY-AT-HOME ORDER IS EFFECTIVE

  • If employer has directed employee to work from home, or given permission, then the employee’s home becomes a second job site, and employer benefits from employee’s services, so injury at home will probably be compensable.
  • The personal comfort doctrine is another theory that will support compensability of an injury such as slipping and falling in the bathroom.

WCAB NEWS The Boards remain closed to the public at this time.  Hearings, now including case-in-chief trials, are being conducted telephonically by calling the WCJs’ telephone conference lines. Documents are to be filed electronically via EAMS or JET File or paper filing by U.S. Mail.  (If none of those filing procedures will work, email filing is a last resort.) To learn the latest changes in WCAB policies and procedures, you can check for news releases at https://www.dir.ca.gov/dirnews

 

Media Contacts: Company Name:  Dietz, Gilmor & Chazen, APC
Industry:  California workers’ compensation defense
Full Name:  David Jankosky, DGC Client Services
Email Address:  djankosky@dgcattorneys.com

2020-07-15T16:01:37-07:00May 13th, 2020|COVID-19 News, News Articles|

A Message from Dietz, Gilmor & Chazen – Leadership, Technology, and Service

Our Commitment To You

As we continue to monitor the impact of COVID-19, we maintain our focus on the well-being of our employees, customers and their families. We want to reassure you of the resilience of our business as we respond to this evolving situation.  We will provide continuity and reliability with communication and case handling.  Our leadership team is actively monitoring the status of our communities, government agencies and WCAB processes.  We are actively working with our IT department to ensure that all remote work is done in an uninterrupted fashion.

Remote Work Is Already Part Of Our Business

We want to assure you that we were already designed to work remotely.  Our case management system is web-based and our attorneys can log in remotely from anywhere.  This along with use of email and phones will allow the same level of customer service and legal handling that we know you expect.  Our attorneys will be reaching out to you to ensure that you have their cell phone numbers and to maintain open communications.  If you leave a voicemail, you will get a prompt return phone call.  While our attorneys will have remote access, we will have litigation support in our offices to the extent it is appropriate.

In this time of uncertainty, we want you to know that we will be a reliable constant in providing legal handling.  We will continue to provide the same level of commitment, dedication and hard work.  We wish you and your families all the best during these times.

Very truly yours, Bill, Mark and Avery
Managing Partners for DGC Attorneys

2020-07-15T16:02:47-07:00March 19th, 2020|COVID-19 News, News Articles|

DGC Attorney, Erin Ward-Dugan (Partner of Litigation Management, Long Beach), Obtains Take Nothing Against Serial Claimant

The seventh time was not the charm for the claimant.  Between February 2014 and June 2018, she had been successful in obtaining three settlements of six workers’ compensation claims (five CTs and one specific) that she filed against the employer after being terminated upon the discovery that multiple Social Security numbers she was using were invalid. The settlements totaled $24,700.00.  Either before or after each settlement, she applied for work at a different employer location, using a variation of her name and a different SSN.

She succeeded in being hired at a fourth employer location in October 2017, but in May 2018, after about six months, she was terminated for cause.  Then in May 2019, she filed a post-termination CT claim, alleging injury to her right knee.  The claim was promptly denied on the grounds of being a post-termination claim and lacking supporting medical evidence.

In September 2019, the claims administrator asked Erin Ward-Dugan to substitute in and take over defending the claim.  After quickly completing discovery, she recommended taking the case to trial.  There did not appear to be substantial medical evidence to support a finding that the applicant had sustained an injury, and there was ample evidence for attacking the applicant’s credibility.

Trial took place on December 17, 2019.  The applicant’s attorney declined to call the applicant as a witness and proceed with direct examination, so Erin called her to the stand for cross-examination.  Erin proceeded with detailed questioning about her prior claims, including all of her various aliases and false Social Security numbers used to obtain employment, her numerous post-termination claims of injury to many of the same body parts, and the settlements obtained.  When questioned about the current CT injury claim, the applicant tried to change the injury to a specific.  She admitted that she did not seek medical treatment for over a year after her termination and did not tell her doctor about her injury history.  When asked questions about her work for a subsequent employer (essentially the same type of work she did for the defendant), the claimant invoked the Fifth Amendment.

Just five weeks later, the WCJ issued a Findings and Order that claimant take nothing.  There was no substantial evidence to support a finding of injury.  The limited medical reports that claimant relied on were deficient since the claimant had not disclosed her multiple prior alleged injuries, claim history, or subsequent job with a different employer to the doctor.  Although the WCJ did not directly comment on the claimant’s credibility, there is little doubt that the documentary evidence that Erin introduced and the damaging testimony that she elicited on cross-examination rendered the claimant a poor witness on her own behalf.

The applicant did not appeal the Findings and Order.  The case has been referred to the SIU for additional fraud investigation.

You can read redacted versions of the Minutes of Hearing and Summary of Evidence and Findings of Fact and Findings And Order below.

 

Minutes of Hearing and Summary of Evidence: Click here

Findings of Fact and Findings And Order: Click here

 

Media Contacts:
Company Name:  Dietz, Gilmor & Chazen, APC
Industry:  California workers’ compensation defense
Full Name:  David Jankosky, DGC Client Services (818-654-9911, Ex. 1231)
Email Address:  djankosky@dgcattorneys.com

2020-03-12T13:27:50-07:00March 13th, 2020|News Articles|

DGC Attorney, Jason Buscaino (Ontario) Wins on Compensable Consequence Body Parts, Avoids Multiple PQMEs, and WCAB Denies Applicant’s Reconsideration Effort.

On 01/29/16, Applicant suffered burns to his feet while handling caustic materials at work.  The injury was accepted, and benefits were provided.  Ultimately, Applicant was evaluated by a PQME in podiatry.

On 12/27/17, Applicant sustained injuries to his left hand, fingers, and chest while using a table saw at home.  He claimed that this was a compensable consequence on the theory that the burns to his feet caused him to lose balance and suffer further injury.  On 6/07/18, Applicant fell in the street while walking home and sustained a back injury, a head injury, a broken orbital bone, and loss of consciousness.  He later claimed that this fall was another compensable consequence, alleging that the burns to his feet caused him to lose his balance and fall.   

Applicant’s counsel amended the claim to add the left hand, left fingers, chest, head, left eye, left orbital bone, and back.  Jason Buscaino, an experienced California workers’ compensation defense attorney, believed the newly alleged compensable consequence injuries were questionable, particularly Applicant’s fall in the street, as Applicant had originally reported to his PTP that he experienced non-industrial dizziness, which caused him to fall.  Interestingly, the PTP’s next report changed the narrative, indicating that Applicant lost his balance, causing him to fall and then feel dizzy.

As part of a diligent California workers’ compensation defense investigation of the newly alleged compensable consequence injuries, Jason secured records from Applicant’s private medical providers.  These medical records, particularly those from the emergency room visits, did not mention anything about the industrial burns to his feet but did detail different factual scenarios:             

As to the table saw incident, the records documented that the table saw propelled a wooden plank backwards toward the Applicant at a high rate of speed, causing injury; and as to the fall, the records documented that Applicant suffered a syncope episode, causing his collapse in the middle of the street, resulting in injuries. 

Jason filed a DOR for an MSC to either settle the case or set it for trial.  At the MSC, Applicant’s counsel sought an order allowing additional QME panels in orthopedic surgery, neurology, and ophthalmology.  Jason successfully argued that before allowing the three additional QME panels, the WCAB needed to first make the factual determination as to whether the subsequent incidents were related to the original injury.  The MSC judge agreed and allowed the case to be set for trial. 

At trial, Applicant and his wife maintained that the industrial burns to his feet caused him to lose his footing and slip, resulting in both the table saw incident and the fall.  When Jason cross-examined them, he used the emergency room records in a successful attack on the credibility of their testimonies.

The WCJ found permanent disability from the admitted injury to Applicant’s feet based on the podiatry PQME.  The WCJ also found that Applicant did not sustain injury to his left eye, left orbital bone, left hand, left middle fingers, left ribcage, and back as a compensable consequence. 

Applicant filed a petition for reconsideration.   In this instance, given their high level of confidence in the position taken at trial and the strength of the WCJ’s decision, no answer was filed.  The WCAB denied Applicant’s Petition for Reconsideration.  With the trial results upheld on appeal, Jason successfully shut down this claim and avoided at least three additional PQMEs, which would have prolonged the litigation, and potential additional exposure for benefits.

You can read redacted versions of the Report and Recommendation on Petition for Reconsideration, Opinion and Order Denying Petition for Reconsideration and Findings and Award and Opinion on Decision below.

 

Report and Recommendation on Petition for Reconsideration: Click here

Opinion and Order Denying Petition for Reconsideration: Click here

Findings and Award and Opinion on Decision: Click here

 

Media Contacts:
Company Name:  Dietz, Gilmor & Chazen, APC
Industry:  California workers’ compensation defense
Full Name:  David Jankosky, DGC Client Services (818-654-9911, Ex. 1231)
Email Address:  djankosky@dgcattorneys.com

2020-04-23T13:21:38-07:00February 26th, 2020|News Articles|

DGC Associate Attorney Clara Forman (Ontario) Obtains Two Take-Nothings After Presenting Evidence Developed During Investigation and Discovery

In October 2018, while being counseled about his job performance and under the impression that he was going to be fired, the applicant reported to his supervisor that he had been injured at work on April 9, 2018 (back) and October 26, 2018 (back and leg).  The applicant began receiving treatment for the October 26, 2018 injury.  The April 9, 2018 injury was denied for lack of factual and medical evidence.  The matter was referred to DGC for defense handling.

After her initial review of the file and speaking with an employer witness, Clara Forman knew that the matter was ripe for litigating injury AOE/COE.  The applicant reported he injured his back on April 9, 2018 while helping to move large pipes with his supervisor and a co-worker.  The supervisor denied this incident took place.  The applicant alleged that the second injury occurred while walking down some stairs because he continued to have back pain from the first injury and as a result his leg gave out on him.  Clara’s plan was to prove that the first injury did not occur and that the applicant was not a credible witness, which ought to result in the judge concluding that the second injury did not occur either.

Shortly after the claims were reported, the insurer had assigned an investigator to interview (1) the applicant, who was not yet represented, (2) the applicant’s brother, who was a foreman with the employer, (3) the employee who was allegedly present on April 9, 2018, and (4) the supervisor.   Additionally, surveillance was conducted and captured the applicant performing roof work on his trailer.

After applicant became represented, Clara took his deposition.  Among other things, he testified that he had not done any roof repairs to his trailer during the time in question.

Clara filed a DOR for a priority conference, which was continued, over her objection, to allow applicant’s attorney to thoroughly review the surveillance footage and the deposition transcript.

At the continued priority conference, the applicant dismissed his attorney and said he would represent himself.  The case was continued to an MSC to allow the applicant to obtain his file from his former attorney.

At the MSC, the applicant stated that he had audio evidence that would prove his injuries and listed numerous audios as trial exhibits, to which Clara objected.  The applicant did not serve any exhibits prior to the trial.

On the first day of trial, applicant said that the audio evidence was on three different phones.  After discussing the admissibility of the audio exhibits, the trial judge stated she was going to allow the applicant some leeway and continue the trial so he could serve the audio.  To avoid the continuance, Clara waived service of the audio and requested the opportunity to review the audio with the applicant and the Information and Assistance Officer. During the review, it became apparent the applicant had recorded the discussions without the knowledge of the other participants.  After further discussion with the judge, she ruled that the audio exhibits were inadmissible because he had violated California law since the speakers were not aware they were being recorded.

The applicant and his witness, a former co-worker, testified.  Clara impeached the applicant with his deposition testimony on several points.  The applicant’s witness made statements that were inconsistent with what he previously stated to the investigator.   Given these contradictions, defendant could call the investigator as an impeachment witness.

On the second day of trial, the applicant’s two witnesses – his brother, who had been a foreman with the employer, and his former co-worker – testified.  The defense witnesses who testified were the supervisor and the two investigators.  One investigator testified about the surveillance.  The other one testified about his interviews of the applicant, the applicant’s brother, and the applicant’s former co-worker.  The defense witnesses’ testimonies significantly and credibly contradicted the testimonies of the applicant and his witnesses.

The trial judge issued Findings and Orders that applicant take nothing because he did not meet his burden of proving industrial injury.  After analyzing the evidence in detail, she concluded that there was no credible evidence to show that applicant sustained an injury on either April 9, 2018 or October 26, 2018.

You can read redacted versions of the Minutes of Hearing, Summary of Evidence, and Order of Consolidation, Minutes of Hearing and Summary of Evidence and Findings and Order below.

 

Minutes of Hearing, Summary of Evidence, and Order of Consolidation: Click here

Minutes of Hearing and Summary of Evidence: Click here

Findings and Order and Opinion on Decision: Click here

 

Media Contacts:
Company Name:  Dietz, Gilmor & Chazen, APC
Full Name:  David Jankosky, DGC Client Services (818-654-9911, Ex. 1231)
Email Address:  djankosky@dgcattorneys.com

2020-01-07T17:01:50-08:00January 7th, 2020|News Articles|

DGC’s Robert Diaz de Leon (Ontario) Prevails Against Applicant and CIGA, Saves Client Over $100,000

Faced with a CT injury claim based on an orthopedic AME report and CIGA’S attempt to shift liability to his legally uninsured client, Robert Diaz de Leon went to trial on the issues of injury AOE/COE as to the applicant and “other insurance” as to CIGA.  At stake was significant exposure: to the applicant for a minimum of 28% permanent disability ($26,212) after multiple shoulder surgeries and continuing/future medical treatment; to CIGA for reimbursement of at least $66,881; and to various lien claimants, including EDD, whose lien was about $12,012.00.

Robert was armed with a PQME report by an orthopedist who found no injury caused by the applicant’s concurrent part-time employment with the client, the applicant’s testimony (from CIGA’s two depositions and the deposition taken by Robert) to the effect that she did not have any injury or problems from her job duties with the client, and legal arguments supporting the position that the client was not “other insurance” for CIGA’s purposes.  The WCJ found that the PQME report was better reasoned and more persuasive than the AME’s report (the applicant and CIGA were the parties to the AME in the three specific injury claims against the other employer).  This medical evidence and the applicant’s trial testimony, which was consistent with her deposition testimony, led to the WCJ’s finding that no CT injury resulted from the applicant’s employment with the client.

A “take nothing” was issued. In addition, the WCJ agreed with Robert’s legal argument that the client did not qualify as “other insurance” and found that the legally uninsured employer was not “other insurance” under Insurance Code sec. 1063.1(c)(9).  Therefore, CIGA was not entitled to shift liability to, or obtain reimbursement from, the client.

Neither the applicant nor CIGA filed a petition for reconsideration.

You can read redacted versions of the Amended Minutes of Hearing and Summary of Evidence and Findings of Fact and Opinion on Decision below.

 

Amended Minutes of Hearing and Summary of Evidence:  Click here

Findings of Fact and Opinion on Decision:  Click here

 

Media Contacts:
Company Name:  Dietz, Gilmor & Chazen, APC
Full Name:  David Jankosky, DGC Client Services (818-654-9911, Ex. 1231)
Email Address:  djankosky@dgcattorneys.com

2020-04-23T13:21:38-07:00September 25th, 2019|News Articles|

DGC’s Jonathan Freeman (Managing Attorney, San Francisco Office) Obtains Take Nothing from Oakland WCAB

On May 29, 2019, DGC attorney Jonathan Freeman obtained a take-nothing decision from the Oakland WCAB.

The claimed injury was filed as a cumulative trauma by an applicant at a tire store, who claimed that he suffered a knee and back injury.  Defendant had no medicals to support the claim and immediately referred the case to DGC because they suspected the motive for the claim was that a co-worker (the applicant’s cousin) at the insured had recently received a substantial settlement for a workers’ compensation case.  The applicant failed to attend a scheduled MPN appointment to assess his medical condition during the delay period.  After deposition of the applicant revealed that he had never missed any time from work and continued to be employed by the insured in a full-duty capacity, Jonathan Freeman recommended denial based on the lack of a date of injury under Labor Code Sections 5412 and 5500.5(a).

The PQME evaluated the applicant and provided 0% impairment under DRE I, but did state that the applicant’s back problems were due to a combination of repetitive work and degenerative issues.  Applicant demanded stipulations at 0% PD with a lifetime medical award, which defendants refused on the grounds that without compensable permanent disability or compensable temporary disability there could be no date of injury under Labor Code 5412, and without a last day worked there could not be a “last date” upon which the employee was harmfully exposed under Labor Code 5500.5(a).   Jonathan next pushed the case to hearing with a DOR and obtained favorable stipulations when setting the case for trial, including the fact that the case rated 0% and that applicant had missed no time from work.

The matter was submitted for trial on May 29, 2019.  The WCJ ordered that the applicant take nothing.  The decision has not been appealed and is therefore final.

You can read a redacted version of the WCJ’s Findings, Order, and Opinion on Decision below.

 

WCJ’s Findings and Order and Opinion on Decision:  Click here

 

Media Contact:
David Jankosky, Director of Client Services, DGC Attorneys
djankosky@dgcattorneys.com / (818) 654-9911, Ex. 1231

2019-09-25T11:57:50-07:00August 12th, 2019|News Articles|
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