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
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
Dietz, Gilmor & Chazen Announces Ryan Greer as New Firm Partner
Dietz, Gilmor & Chazen, APC, is proud to announce the promotion of Ryan Greer to firm Partner.
San Diego, CA – 07/17/2019 – 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 Ryan Greer, Esq. to Partner.
Ryan Greer, Managing Attorney (Orange County) will continue his leadership as Partner providing outstanding legal representation from our new office in Orange County.
“Our firm is pleased to share this news and recognize Ryan Greer as an exceptional attorney. Our clients will also be pleased with this announcement,” said Bill Dietz, speaking on behalf of fellow firm Principals Mark Gilmor and Avery Chazen.
About Dietz, Gilmor & Chazen, APC
DGC was established in 1997 and has now grown to eight California Offices, with 42 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
Media Contacts:
Company Name: Dietz, Gilmor & Chazen, APC
Full Name: David Jankosky, DGC Client Services (213-278-1513)
Email Address: djankosky@dgcattorneys.com
DGC Managing Attorney Jonathan Freeman (San Francisco) Assists In Fraud Conviction with $5,145.65 in Restitution Ordered
On May 8, 2019, having committed insurance fraud by lying about prior injuries and medical treatment to a PQME, an applicant pled no contest in the County of Sonoma to one count of insurance fraud under Insurance Code 1871.4(a)(1).
The applicant had claimed a neck and right shoulder injury via cumulative trauma through October 2015. Prior to the case being referred to DGC, the applicant was evaluated by a PQME. In that evaluation, the applicant falsely stated she had never had prior injuries to her right shoulder or neck and had never been involved in a motor vehicle accident. Based on that history, the PQME issued a report finding PD, with no non-industrial apportionment. Defendants began paying PDAs consistent with the rating. The case was then referred to DGC for finalization of stipulations at 15% PD.
However, when reviewing the file materials provided by the client, it became clear that the applicant had grossly misrepresented her medical and litigation history. She had been involved in a MVA resulting in neck pain in 2003. She had also filed a workers’ compensation claim for her right shoulder in 2006 while working for a different employer and had received substantial medical treatment. The medical records also showed that she had been involved in a MVA about 4 months prior to the industrial injury resulting in a whiplash injury to her neck. The applicant continued treating for the neck injury from the MVA until the day after her alleged work injury, at which time she commenced telling her workers’ compensation evaluators that she did not have prior injuries or symptoms. DGC’s Jonathan Freeman recommended a supplemental report to address apportionment before proceeding with stipulations, and recommended the filing of an FD-1.
After Jonathan cleared a cover letter and provided the PQME with these records, he reduced the rating by finding non-industrial apportionment to all body parts. Defendant by that time had a substantial PD overpayment due to the applicant’s material misrepresentations, and this formed the damages of the fraud case which was filed by the DA’s office in the County of Sonoma.
The applicant stipulated to restitution in the amount of $5,145.65, was sentenced to 75 days in jail with the option of entering a work release program, and was put on probation for 36 months.
You can read the redacted Minute Orders below.
Minute Orders – Superior Court of California, County of Sonoma: Click here
Media Contact:
David Jankosky, Director of Client Services, DGC Attorneys
djankosky@dgcattorneys.com / (818) 654-9911, Ex. 1231
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
Media Contact:
David Jankosky, Director of Client Services, DGC Attorneys
djankosky@dgcattorneys.com / (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
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