On November 9, 2018, a co-defendant issued four checks totaling $1,299,634.65 to an insurance carrier client of Devin Andriesen for reimbursement of 87% of the TD, PD, medical treatment, and C&R payments. The reimbursement was the final step in Devin’s successful prosecution of the contribution claim, litigation that was unusually protracted due to the co-defendant’s efforts to evade liability.
Defending by way of Substitution of Attorneys to DGC, Devin inherited responsibility for a client solely elected against under L.C. §5500.5 within the final year of injurious exposure, but with, as Devin would unwaveringly maintain, only 13% of the total liability for a case with multiple injuries, along with extremely complex and ongoing medical symptoms, diagnoses, and surgical treatments that would continue for years after the claim was filed.
A construction worker and heavy equipment operator, the claimant’s primary skill was operating asphalt paving rollers. She did so for over seventeen years in which numerous injuries were claimed and treated. A specific injury occurrence example was when claimant absorbed a “…6 to 8 inch drop…” while driving a roller on uneven ground. However, the pertinent claim here was the cumulative trauma claim filed for May 1990 – May 1991, in which injuries claimed included the cervical spine, bilateral shoulders, bilateral elbows and epicondylitis, lumbar spine, and bilateral carpal tunnel syndrome.
Physician findings included thoracic outlet syndrome, RSD, severe daily headaches, Dupuytren’s disease, loss of mobility in fingers, and vertigo, and the claimant’s treatment included Botox injections and 12 surgical procedures, including discectomies, cervical fusions, and carpal tunnel releases.
Presented with an obstinate co-defendant, and unable to mandate (because of the L.C. §5500.5 election) that co-defendant negotiate apportioning benefits up front, Devin settled the case-in-chief by way of C&R in 2015, and then focused on obtaining recovery from the co-defendant, which had 87% of the coverage for the CT period, but offered only $200,000 for contribution after multiple hearings.
Devin’s insurer’s client did employ the claimant from 1979 to 1986, and again from 1989 to 1991 (with the insurer covering only a small portion of the latter time). While this prior employment history may have been one of a few ostensible reasons for co-defendant’s obstinacy, it was not a good one. L.C. §5500.5 makes clear not only the last year of injurious exposure tenet but also the principle that supplemental proceedings shall not restrict the contribution rights of parties elected against.
Faced with the claimant’s death in 2016, yet armed with the skill to successfully tie all case-relevant body parts, medical diagnoses, heavily fragmented treatment, and numerous med-legal evaluations back to the 1990-1991 period of injurious exposure, year-by-year, Devin’s arbitration brief in essence rebutted co-defendant’s defense based on a QME opinion which stated that only bilateral carpal tunnel syndrome was industrial for the CT period. Further, the co-defendant’s QME provided his opinion without ever having evaluated the claimant or even addressing the claimant’s deposition testimony regarding complaints to all body parts dating back to 1991, despite having been provided all records.
In fact, with the other QME and med-legal opinions incorporating all case-relative body parts as cumulatively or consequentially injured, neurologist opinions included, Devin’s medical timeline showed that co-defendant thus “Conveniently…failed to pursue obtaining another opinion for nearly seven years.” The arbitrator’s report and recommendation itself echoes this point, stating that the co-defendant “…appears to have resigned themselves to their apparent situation” (see the attached).
In sum and also attached, the WCAB’s Opinion and Order Denying Petition for Reconsideration adopted and incorporated the arbitrator’s report in its July 2018 decision, which did not lead to any further challenges for Devin to address in advance of his client’s November 2018 recovery of $1,299,634.65 in contribution.
Payment Demand Letter from DGC Defense Attorney, Devin Andriesen: Click here
Arbitration Brief by DGC Defense Attorney, Devin Andriesen: Click here
Arbitrator Response to Co-Defendant Petition for Reconsideration: Click here
WCAB Opinion and Order Denying Petition for Reconsideration: Click here
WCAB Stipulations to Resolve Claims for Contribution: Click here