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
DGC Attorney, Jeff Hammill, Obtains Lien Withdrawals After Assisting Riverside County Prosecutor in Obtaining Fraud Conviction
On January 3, 2018, at a Lien Conference at the Santa Ana WCAB, the lien holders of record withdrew all liens for medical treatment provided to a California school district cafeteria worker convicted of workers’ compensation insurance fraud under Insurance Code §1871.4, subd. (a) (4), for fraudulently obtaining medical treatment. The claimant was sentenced to three years’ probation and ordered to pay restitution.
Securing deposition testimony and a well-timed workers’ compensation claim dismissal, DGC’s Jeff Hammill assisted in the criminal prosecution. In further obtaining the withdrawal of all liens, Jeff wrapped up the defense for his client in the workers’ compensation case. The file was referred to Jeff from the start of litigation in January 2014.
On December 14, 2017, in support of Riverside County’s fraud conviction, the Fourth District Court of Appeal upheld a restitution order for $34,925.09 in medical, deposition, investigation, and salary reimbursement expenses to be paid by the convicted claimant. The claimant challenged the majority of this amount, claiming abuse of judicial discretion and arguing culpability only for costs incurred after being caught “milking” the claim. The court reminded the claimant that by pleading guilty to a misdemeanor on a felony insurance fraud charge, she had by law already admitted to “faking” the entire injury.
Claimant had claimed a specific injury to her low back, spine and spinal cord from lifting a box of frozen burritos. She subsequently told her doctor about inability to lift her arms, sit for prolonged periods, or walk without a limp. However, video surveillance obtained while treatment was ongoing, and shown to the treating orthopedist, clearly showed claimant walking with a normal gait through a pumpkin patch with children, squatting and bending with no evidence of pain, driving for long distances, carrying items, shopping, and gambling in Palm Springs, CA.
Minutes of Lien Hearing: Click here
4th Appellate District Opinion: Click here
Order Dismissing WC Case: Click here
On August 29, 2017, Jonathan Freeman, managing attorney of DGC’s San Francisco office, obtained a “take nothing” order from a WCJ at the Oakland WCAB. No reconsideration was sought, so the decision is final.
The claimed injury involved an itinerant teacher who regularly rode a bicycle to and from work and was injured during her commute by an allegedly negligent automobile driver. The accident caused injury to the applicant’s neck and left shoulder and fractured her left humerus. The employer timely denied liability for the claim based on the going and coming rule.
The employer referred the file to DGC in March of 2017, and the case was immediately fast-tracked for trial, which was completed in July 2017.
At trial, the applicant attempted to show that her home was a second worksite due to the work she did at home, including preparing lesson plans and sending and receiving emails. The applicant also tried to link her commute to her work by emphasizing the work tools and materials she transported to and from her home each day, including musical instruments and paperwork.
DGC was successful in asserting the going and coming rule to completely defeat applicant’s claim by showing that the applicant’s situation fit closely with existing case law barring regular-commute injuries. The WCJ also emphasized – as has the California Supreme Court – that there is no special exception to the going and coming rule for white collar workers who regularly take work home but are not specifically required or instructed to do so.
Findings and Award & Opinion and Decision: Click here
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