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
Questions or Issues?
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 [...]