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, 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

Media Contacts:                                                                                                                      

Company Name: Dietz, Gilmor & Chazen, APC
Full Name: David Jankosky, DGC Client Services (213-278-1513)
Email Address: djankosky@dgcattorneys.com

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