Ogilvie Petition to Supreme Court Pending

Friday, September 16, 2011 | 0

The lengthy saga in the Ogilvie v WCAB (City & County of San Francisco) will continue for at least a while longer as the defendant in the case, C&CSF, has filed a petition for hearing in the California Supreme Court, seeking review of the 1st District Court of Appeal's rather confusing decision in its case. The petition cites two principle bases for the Supreme Court to review the case:

1. The city and county argued that the Court of Appeal was incorrect in equating diminished future earning capacity and inability to compete in the open labor market as being equivalent indicators of disability and the conclusion the Permanent Disability Rating Schedule schedule is supposed to result in a rating that reflects the employee’s “diminished future earning capacity”.

2. The decision of the Court of Appeal is contrary to the Legislative intent in amending Labor Code Section 4660 as it will significantly increase the cost of determining permanent disability by allow rebuttal in a cumbersome and expensive fashion is a large number of cases. Senate Bill 899, which included the described amendments, was specifically passed to address the crisis in increasing WC benefits and the costs involved in both the litigation process and the resulting increases in PD benefits will instead result in a resurrection of increased WC costs to employer the Legislature had intended to prevent.

Until the Supreme Court acts, the decision of the appellate court is still binding law (at least in the 1st District) however we should have additional information on the finality of the petition for hearing in a fairly short period of time ( 60 days or so) rather than the almost two years the Court of Appeal took to act. If the Supreme Court grants the petition (an admittedly low probability as the Supreme Court only rarely grants such requests), it will likely delay the final determination by approximately two additional years, but in the interim the Court of Appeal decision will no longer exist. If the court denies the petition, the case will remain on remand to the WCAB for further development of the record and the next round of clarifying case law.

In the meantime it is certainly likely that appeals in different appellate districts will also continue and we could very easily get different answers from different appellate courts creating a conflict in the law that compels the Supreme Court to act in the future on the issue.

ODDS & ENDS: We have legislation but will we have law?

The Legislative session for 2011 has ended, at least as far as the deadline for passage of non-urgency bills for this year.  A number of bills involving workers’ compensation have made it through the meat grinder that is the legislative process and are on their way to the governor’s desk to await in uncertain fate (as the governor’s office has not tipped its hand on most of these bills).

There are quite a few bills of interest to the employer and insurer communities but for practitioners and claims handlers, there are relatively few bills of significance:

1. Assembly Bill 378 would cap the cost of compounded medications provided by physicians until the Division of workers' Compensation adopted a fee schedule.  Employers and carriers had complained the practice of providing such medications was driven more by the higher profit margin for physicians than existed for other medications which were subject to the OFMS.

2. AB 1155 would prohibit consideration of race, religion, gender, age and other personal characteristics in apportionment to non-work related causes under Labor Code Section 4663. Given the existence of similar language in the Government Code, this bill may ultimately only be window dressing. However there is no published appellate authority specifically on point confirming such was the status of the law (the one case which addressed this issue was not ordered published).

3. AB 947 is arguably the most significant legislation currently under consideration from a practitioner’s/claims perspective. It would eliminate the 104 cap on temporary total disability for a limited number of cases involving surgery occurring after the 104 weeks of payments had expired.  As originally drafted, this bill would have eliminated the 104-limit in any case where the employees “course of treatment” lasted beyond the 104 weeks, a provision that would have effectively blown up the 104-limit in a significant number of cases.

The statutory language that passed is much more limiting as it applies to cases involving “surgery,” only where the surgery occurs after the 104 weeks has already been paid or where the recovery period for a surgery extends past the period where 104 weeks of TD benefits have been paid and only where the reason surgery is outside that time frame is because the employee’s physician recommended and needed to complete a course of conservative treatment before considering surgery. Excluded is any surgery delayed by the employee’s “willful failure."  This language would affect injuries after 1/1/12 giving us now four different benchmarks to consider when looking at statutory limits on TD benefits (i.e.: pre 4/19/03; 4/19/03 to 12/21/07; 1/1/08 to 12/31/11 and the new statute effective 1/1/12)

4.  SB 1168 would require the adoption of a fee schedule for vocational experts in to cover reports and expert testimony, presumably in Ogilvie cases.

5.  AB 584 would require utilization review physicians to be licensed in California in order to provide utilization review services and prohibit the use of physicians licensed only in other states.

We shall have to wait for the governor to review and make his decisions on the bills to know which ones we will actually have to deal with come Jan. 1.  Should any of these bills become law; a more complete description along with analysis of how the bills might be applied will be provided.

<i>Richard M. "Jake" Jacobsmeyer is a partner with the Shaw, Jacobsmeyer, Crain & Claffey law firm in Oakland.</i>