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
Company Name: Dietz, Gilmor & Chazen, APC
Full Name: David Jankosky, DGC Client Services (818-654-9911, Ex. 1231)
Email Address: firstname.lastname@example.org
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
David Jankosky, Director of Client Services, DGC Attorneys
/ (818) 654-9911, Ex. 1231
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Faced with a CT injury claim based on an orthopedic AME report and CIGA’S attempt to [...]