Mya Gibson, Partner and Managing attorney of the San Diego Office, received an excellent result in a case regarding permanent disability and application of the AMA Guides.  The case originally proceeded to Trial and the WCJ found the reports of the QME and PTP to not constitute substantial medical evidence and the WCJ appointed an independent medical examiner (IME).  Following an evaluation of the applicant, the IME assigned 23% whole person impairment (WPI) based Chapter 13, Table 13-15, Class 3 impairment per the AMA Guides, based on his impression that the applicant was unable to walk without assistance. The original IME report rated to 39% permanent disability.  The IME’s opinion was based on the applicant’s statements during his examination about her ability to walk and the physical examination.

Ms. Gibson deposed the IME to clarify his opinion and, at deposition, the doctor admitted that a lower WPI would be indicated if evidence were presented that the applicant was able to walk some distance without the cane.  Surveillance video spanning several days was then submitted to the IME, showing the applicant frequently carrying the cane in her hand or on her arm, but rarely relying on the cane to ambulate, as she did not put weight on it while walking. Following review of the video, the IME reduced the WPI to 15%, which in turn rated to only 26% permanent disability. This was based on Class 2 impairment, which contemplates an individual can walk with some difficulty and without assistance, rather than Class 3 impairment, which suggest the individual cannot walk without assistance.

At Trial, the applicant testified that she almost always carried the cane outside the home, but that it was for “security purposes” and she only uses it when necessary. The applicant admitted to being able to walk at work and in her home without the cane. Despite this testimony and the surveillance video, the WCJ awarded the higher WPI of 23% and stated that the limited video submitted to the IME was not good cause for him to substantially reduce the WPI.

Defendant filed a Petition for Reconsideration, challenging the judge’s findings and her refusal to accept the revised opinion of the IME.  The WCAB agreed that the judge had erred and stated that the judge cannot supplant her opinion about impairment and her opinion must be based on medical evidence.  The WCAB stated even absent the surveillance video, the applicant’s testimony at Trial supported the lower WPI since her testimony was consistent with the lower classification in Chapter 13 and the IME had sufficiently explained why the lower impairment was appropriate.  The original opinion of the IME was based on facts that were no longer germane, and it was an error for the judge to rely on the earlier report. The WCAB amended the Award to reflect PD of 26% ($30,975.50) rather than the 39% ($56,260) awarded by the WCJ at Trial, resulting in savings of over $25,000 for the self-insured employer.

Media Contact:
Company Name: Dietz, Gilmor & Chazen, APC
Full Name: Crystal Roney, DGC Client Services (831) 238-2341
Email Address: crystal@dgcattorneys.com

On August 29, 2023, San Francisco DGC associate Adam Gati obtained a take nothing at the Oakland WCAB in spite of a PQME report finding industrial injury in a specific injury case.

The applicant in this case alleged a cumulative trauma to the shoulder from February 21, 2021 – February 21, 2022, and a specific injury occurring on February 22, 2022 to the neck and bilateral shoulders due to a gate falling on him.  After settlement discussions failed, the case was set for trial. Eventually, the applicant and his attorney parted ways and the applicant proceeded to trial in pro per.

Mr. Gati was able to get the cumulative trauma dismissed on the day of trial due to a lack of evidence.  The applicant did not appeal the cumulative trauma dismissal in a timely fashion and this decision is final.

Regarding the specific injury, Mr. Gati was able to put forward credible witness testimony at trial that the applicant’s version of events was not correct and that a gate did not fall on him as he claimed.  The WCJ found that even though the PQME found the injury industrial, the PQME’s conclusions relied on the history of injury as provided by the applicant.  Because the WCJ did not believe that the injury occurred as claimed, the applicant did not carry the burden of proof on compensability and did not sustain injury AOE/COE at the insured.

You may read a redacted version of the Findings and Order and Opinion on Decision below.

Findings and Order and Opinion on Decision:  Click here.

Media Contact:
Company Name: Dietz, Gilmor & Chazen, APC
Full Name: Crystal Roney, DGC Client Services (831) 238-2341
Email Address: crystal@dgcattorneys.com

Dietz, Gilmor & Chazen, APC, is proud to announce the promotion of James Bruscino to firm Partner.

Sacramento, California – 09/22/2023– Dietz, Gilmor & Chazen, APC, a California statewide law firm practicing exclusively in workers’ compensation defense, subrogation, asbestos, Labor Code §132a, and serious and willful misconduct claims, promotes James Bruscino, Esq. to Partner.

“As a pillar of the Sacramento region for decades, Jim Bruscino is most deserving of this recognition and our sincerest thanks for his hard work and dedication to workers’ compensation defense in California and to the firm,” said Mark Gilmor, Managing Partner for DGC, speaking as well for Managing Partner, Avery Chazen.

Mr. Bruscino began his career as a police officer dedicating fifteen years to law enforcement throughout the region with the Novato, Fairfax, and Vallejo Police Departments.  After attending McGeorge School of Law at University of the Pacific, he was admitted to the State Bar of California in 1991 and began work as an attorney in workers’ compensation defense.  He joined Dietz, Gilmor & Chazen in 2014, was promoted to Managing Attorney in 2017, and is now promoted to firm Partner.

As a Certified Specialist in Workers’ Compensation by the State Bar of California Board of Legal Specialization, Mr. Bruscino serves all involved stakeholders with the utmost integrity and legal expertise, inclusive of public and private self-insured and self-administered employers, insurance and reinsurance carriers, and brokers and risk management expert groups.

DGC was established in 1997 and has eight California offices with 47 licensed California attorneys practicing exclusively in workers’ compensation defense litigation.  The firm’s guiding principles are to serve clients with exceptional customer service and legal representation to achieve prompt case resolution and reduce claim costs California businesses.  Visit the firm’s website for more information at https://dgcattorneys.com                                                                                                               

Media Contact:
Company Name: Dietz, Gilmor & Chazen, APC
Full Name: Crystal Roney, DGC Client Services (831) 238-2341
Email Address: crystal@dgcattorneys.com

On November 28, 2022, the San Mateo District Attorney’s Office filed nine counts of felony insurance fraud, as well as a count of attempted perjury, against an applicant in a case handled by Jonathan Freeman of DGC’s San Francisco Office.

Although the case was accepted and temporary disability was being paid, through discovery including subpoenas and a deposition on August 2, 2022, Mr. Freeman established that the applicant was cashing temporary total disability checks while concurrently working for a delivery service.

Additionally, it appeared from the records that the applicant lied about his work with the delivery service at deposition, at first saying that he had not worked anywhere since his date of injury on January 2, 2021. Only later in his deposition did he put forth that he had indeed worked for the delivery service around May of 2021, stating however that it was only for two months.

In reality, the subpoenaed records of the delivery service showed that the applicant had worked for the delivery service for approximately six months, including the day before the deposition and further continuing after the deposition, all while still cashing TTD checks and not reporting his wages to the insurance carrier.

The accused applicant failed to appear at his arraignment on January 11, 2023, and as of January 24, 2023, a bench warrant was issued.

All defendants in a criminal action are presumed innocent until proven guilty in a court of law.

Media Contact:
Company Name: Dietz, Gilmor & Chazen, APC
Full Name: Crystal Roney, DGC Client Services (831) 238-2341
Email Address: crystal@dgcattorneys.com

The applicant in this case alleged a cumulative trauma to her upper extremity from May 18, 2020 to May 18, 2021 from working at a deli in Sunnyvale, California.  Through discovery including subpoenas and a deposition, Mr. Freeman was able to establish that the applicant had medical problems for the claimed body part which pre-existed the policy in the case and was actually on state disability for a non-industrial surgery to the claimed body system prior to the policy going into effect.

Mr. Freeman was able to control the specialty of the panel and obtained a PQME report indicating that the applicant did not have an industrial injury.  The PQME maintained this position after a supplemental report.  The PQME’s opinion was that the applicant’s upper extremity problems were related to her pre-existing non-industrial surgery and recovery therefrom.

Applicant attorney obtained a competing chiropractic medical legal report from a PTP which indicated that the applicant had cumulative trauma.  After settlement discussions were not successful, the case proceeded to two days of trial.  After hearing testimony and reviewing defendant’s trial brief, the WCJ issued a decision following the PQME’s report and finding that the applicant did not sustain an injury arising out of and arising in the course of employment to the upper extremity.  Applicant attorney did not file a petition for reconsideration and the applicant will take nothing on the claim.

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

Findings and Order and Opinion on Decision:  Click here.

Media Contact:
Company Name: Dietz, Gilmor & Chazen, APC
Full Name: Crystal Roney, DGC Client Services (831) 238-2341
Email Address: crystal@dgcattorneys.com

The applicant alleged a cumulative trauma injury from May 20, 2007 to May 20, 2008, to his back, psyche, abdomen, eye, lower extremities, upper extremities, head, internal, and reproductive systems. On August 6, 2019, the case-in-chief resolved by Compromise and Release for $778,886.29. Once settlement was reached, the case issues turned to seeking contribution from the codefendant who had 38% of coverage for the cumulative trauma period.

Given the large settlement amount and extensive injuries, benefits paid were in excess of $1,500,000. Thus, seeking contribution was essential to recoup costs for which the codefendant was liable. However, further discovery was pursued by the codefendant in an attempt to decrease their liability. This included the deposition of Dr. Lane, who confirmed his prior favorable opinion regarding apportionment and supplemental reporting from the QME, Dr. Bernicker, which we successfully argued was not substantial. Following codefendant’s discovery attempts, Mr. Chazen aggressively continued to pursue contribution through arbitration.  Numerous conferences were held where Mr. Chazen continued to advocate for full pro rata recovery, despite resistance by codefendant regarding date of injury, pro rata percentage, charges incurred and whether there were additional dates of injury.

Ultimately, due to the aggressive efforts by Mr. Chazen and persuasive advocacy, an agreement was reached where codefendant would pay $527,121.99, nearly the full exposure.

You can read a redacted version of the Arbitration Decision, Findings and Order (re Settlement) below:

Arbitration Decision, Findings and Order (re Settlement):  Click here                                                     

Media Contact:
Company Name: Dietz, Gilmor & Chazen, APC
Full Name: Crystal Roney, DGC Client Services (831) 238-2341
Email Address: crystal@dgcattorneys.com