DGC’s Jonathan Freeman (Managing Attorney, San Francisco Office) Obtains Findings and Order from Oakland WCJ Denying TD, PD and Future Medical
On March 12, 2019, DGC attorney Jonathan Freeman obtained a decision awarding the applicant no benefits after trial at the Oakland WCAB.
The claimed injury involved an applicant in a warehouse who alleged she was struck in the head by merchandise in March of 2018. The injury appeared superficial, the diagnostics were unremarkable, and when the applicant was non-cooperative with discovery in the early stages of the claim, the case was denied.
When the applicant retained counsel, the case was referred to DGC in September 2018. Working with the employer and TPA, DGC attempted reasonable settlement at multiple stages for nominal value, but the applicant was unwilling to resolve her case and proceeded with a PQME. The PQME indicated that the applicant had 0% WPI and did not require a medical award. The applicant continued to refuse settlement but did not take further action to develop the record. DGC’s counsel was successful in quickly moving the case to an MSC, closing discovery, and obtaining favorable pre-trial stipulations regarding the applicant’s indemnity rate, periods of disability, and other matters in the pre-trial conference statement.
At an all-day trial on February 25, 2019, the applicant attempted to claim that the PQME’s report was not substantial evidence based on lay testimony and contradictory complaints about the evaluation process. Due in part to the DGC attorney’s vigorous cross-examination, the WCJ ultimately concluded that the applicant testimony regarding the PQME reporting was not credible and that although the applicant claimed to have problem slurring her words, this was not apparent at trial. DGC’s counsel also succeeded in barring applicant’s proposed witness from the stand and succeeded in barring the applicant from testifying to other claims and injuries that she planned to file.
The WCJ ultimately awarded $0.00 in TD, $0.00 in PD, $0.00 in attorneys’ fees and no medical award, essentially resulting in a “take nothing further” for the applicant subject to any petition to reopen. The decision has not been appealed and is therefore final.
You can read the redacted Minutes of Hearing and Summary of Evidence, and the WCJ’s Findings and Order and Opinion on Decision below.
Minutes of Hearing and Summary of Evidence: Click here
WCJ’s Findings and Order and Opinion on Decision: Click here
David Jankosky, Director of Client Services, DGC Attorneys
/ (818) 654-9911, Ex. 1231
DGC San Diego Associate Attorney, Devin Andriesen, Litigates Contribution Issue and Obtains Reimbursement of $1,299,634.65 for Insurance Carrier Client.
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
Dietz, Gilmor & Chazen Announces Opening of New Orange County Location to Coincide with Promotion of Ryan D. Greer, Esq., as Managing Attorney.
Dietz, Gilmor & Chazen, APC, is proud to announce the establishment of our eighth California Office location. Ryan D. Greer, Esq., has been promoted to Managing Attorney and will lead the expansion in Orange County.
Orange, CA – 09/24/2018 – 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, is expanding its Orange County service in response to client demand. The office will be led by Attorney Ryan D. Greer.
The new DGC office will open on Monday, October 1, at 2230 W. Chapman Avenue, Orange, California 92868. This office will serve in addition to DGC’s longstanding Long Beach/Orange County office located at 249 E. Ocean Boulevard, which has served WCABs in Anaheim, Santa Ana, and Long Beach.
Speaking on behalf of fellow firm principals Mark Gilmor and Avery Chazen, Bill Dietz stated, “It is our pleasure to reward Ryan for his tremendous success with the firm while also benefitting our clients with an added physical location for client meetings, depositions, and closer travel to both the Anaheim and Santa Ana WCABs.”
Ryan Greer added, “It is an honor to be provided the responsibility for bringing this expansion to our clients. We have selected a great location near the heart of Old Towne Orange, and the clients we serve are very excited about it.”
About Dietz, Gilmor & Chazen, APC
DGC was established in 1997 and has now grown to eight California Offices, with 43 attorneys, providing defense for insurance carriers, brokers, third-party administrators, private and public employers, and large self-insured groups. The firm’s guiding principles are based on providing exceptional customer service and legal representation. DGC provides the expertise needed to reduce claim costs and achieve prompt case resolution. Please visit the firm’s website for more information at https://dgcattorneys.com
Company Name: Dietz, Gilmor & Chazen, APC
Full Name: David Jankosky, DGC Client Services (213-278-1513)
Email Address: firstname.lastname@example.org
DGC Attorney, Scott Ashby, Eliminates Future Medical Exposure of $1,032,789 with Structured Settlement for $300,000, Resulting in Approximately $732,789 in Client Savings.
On May 10, 2018, Associate Attorney Scott Ashby (DGC San Diego) ended newly-ignited medical spending (averaging over $21,754 per year in medications alone) by way of OAC&R from the San Diego WCAB on a 2015 stipulated case of a now 47 year-old applicant, who had filed a timely Petition to Reopen due to a worsening of her psyche condition.
The applicant had been a stocker and was struck on the back of the head and neck by a falling box containing a microwave. Early symptoms were documented as nausea and dizziness, severe headaches as well as neck and shoulder pain, momentary loss of consciousness with posttraumatic amnesia. Anxiety, sleep disturbance, panic attacks, domestic disputes, repeated cutting behaviors, major depression, nightmares, and borderline personality disorder crept into the applicant’s work injury complaints and history.
Post-award, the parties returned to the AMEs in psychiatry and neurology. By this time, the picture included multiple suicide attempts and psychiatric hospital admissions as well as very expensive migraine and psychiatric medications based on the medical reports and UR decisions. Approved medications included Diazepam, Chlorpromaz, Chlopromazine, Effexor XR, Propronolol, Sumavel DosePro Injections, Relpax, Eletriptam, Zonisamide, and Latuda. Valium was not approved, but applicant paid for it out-of-pocket. Documented marijuana use was also a part of her medical history.
To promote resolution of the claim and reduce the risk of tragedy for all parties, Mr. Ashby assisted the claims examiner in developing a plan to consult with a medical expert and obtain his opinion about the use of the extensive neurological and psychiatric medications. The respected specialist who was consulted confirmed the reasonableness of the current treatment, and advised that it was “…very likely…” to continue for life, given all comorbidities and home life stressors.
With $229,972 in medical payments already (TD and PD were only $8,226 and $24,035 respectively), the consultant’s opinion laid to rest any doubt that the claims examiner’s Future Medical Outstanding Reserve of $1,032,789 would most probably be spent, given the applicant’s relatively young age. The risk of her possible death also hovered.
Again for the benefit of all parties involved, Mr. Ashby and the claims examiner were steadfast in their persistence with the applicant attorney that the legal guarantees and closure provided by a structured settlement (as opposed to continued litigation) could at the very least ameliorate one lingering stressor in the applicant’s life and hopefully provide a boost to her psychiatric condition. Mr. Ashby worked collaboratively with the applicant attorney to make sure the settlement offer was communicated clearly and in the right vein.
The following Structured Compromise and Release agreement was reached: $205,000, guaranteed in the form of $1,110.02 payable monthly to applicant for the next 20 years of life beginning on 07/01/2018; $60,000 up-front cash payable to the applicant; and $35,000 up-front cash payable to applicant attorney.
OAC&R and Walk Through Appearance Sheet: Click here
Structured Annuity Settlement Addendum – Paragraph 9: Click here
Outstanding Medical Reserves and Settlement Evaluation: Click here
Compromise and Release Document – WCAB SDO: Click here
A Discussion Regarding California Code of Regulations, Title 8, Sec. 9785.
The latest submission to the DGC website (available also using AskDGC@DGCAttorneys.com), came from a client who asked: “Is there a Labor Code Section to support an adjuster stopping TD benefits based on no recent medical report? When should an adjuster stop TD benefits if there is no medical evidence?”
Our response noted that there is supporting legal authority for an adjuster to halt TD benefits, and shared a few of the more common situations where one should, if appropriate for strategic management of a claim, keeping in mind each claim is unique and managed under various client guidelines.
For instance, in accepted claims where initial eligibility for TD benefits is a pending issue, 8 CCR §9785(d) indicates that the “…primary treating physician shall render opinions on all medical issues necessary to determine the employee’s eligibility for compensation…” Thus, since a medical report is necessary for determination of TD entitlement, then the absence of a report addressing the issue would render entitlement indeterminable by the adjuster.
At any point in the life of a claim, an adjuster can proactively ask the PTP for information necessary to administer the claim (such as disability status and work restrictions), and the PTP has 20 days to respond per 8 CCR §9785(f)(7). If the PTP then fails to respond, TD benefits can indeed be stopped, if appropriate to the claim circumstances.
Moreover, 8 CCR §9785(f)(8) requires the PTP to provide a PR-2 Report (or narrative containing the same information) every 45 days when there is continuing medical treatment, even if there is no change in the claimant’s medical condition. The PR-2 Report format (8 CCR §9785.2) essentially requires the PTP to address TD status every 45 days, including how long the claimant will be off. If the last report is over 45 days old, an adjuster can schedule an appointment with the PTP and send the claimant a request to attend, along with a Notice of Intent to Suspend TD benefits. If the claimant fails to attend, then TD benefits can be suspended, per Labor Code §4053.
Keep in mind that none of the aforementioned applies if there is an Order for continuing TD payments. Also, under Labor Code §4053, for accepted claims, “suspending” TD benefits means those benefits will be withheld, and if the claimant later comes into compliance, those benefits will be payable, along with TD benefits restarting.
California Code of Regulations, Title 8, §9785: Click here
California Labor Code §4053: Click here
AskDGC! Disclaimer: Click here
DGC Attorney, Carl Taber, Wins at Trial on Almaraz Guzman II Issue; Begins turning tide against inappropriate AME strength measurements
On March 2, 2018, associate attorney Carl Taber of DGC’s San Francisco office obtained a Joint Findings and Award in which the WCJ agreed that the AME had not effectively rebutted the PD schedule, currently resulting in approximately $46,000.00 in PD savings for the defendant, a self-insured public transportation provider. The applicant, a long-time bus driver for the employer, sustained a specific injury to his shoulders helping a wheelchair-bound passenger onto the bus.
The case went to trial on the issue of permanent disability calculations under Almaraz Guzman II vs. the AMA Guides, 5th Edition. The AME had calculated WPI for both shoulders under the range of motion method as indicated in the Guides, but also provided what he claimed was a “more accurate” Almaraz Guzman calculation of shoulder injury based on grip strength measurements. Although grip strength measurements are not favored under the AMA Guides, a growing wave of med-legal evaluators have been utilizing them as part of an Almaraz Guzman analysis to provide higher ratings than those contemplated by the presumptively correct PD schedule, and many judges have deferred to an AME’s judgement on WPI calculations.
Mr. Taber successfully argued that the AME’s opinion as to the grip strength impairment was not substantial medical evidence due to the AME’s conclusory language, the lack of atrophy, the clear omission of manual muscle testing, and the fact that reliance on grip strength testing is contraindicated by the AMA Guides themselves. In summation, the WCJ found it “…implausible that applicant would have been able to continue driving a bus…up to 60 hours per week for nearly two years as of the date of this trial in the presence of such substantial loss of strength.”
Currently on recon, this case may provide a needed turning point for employers and claims administrators as defendants, and should be followed closely.
Click below to read redacted Joint Findings and Award and Opinion on Decision; Applicant’s Petition for Reconsideration; Defendant’s Answer to Petition for Reconsideration; and the WCAB Judge’s Report and Recommendation on Petition for Reconsideration.
Joint Findings and Award & Opinion on Decision: Click here
Applicant’s Petition for Reconsideration: Click here
Defendant’s Answer to Petition for Reconsideration: Click here
WCAB Judge’s Report and Recommendation on Petition for Reconsideration: Click here
Questions or Issues?