Spring Break (Workers' Comp Style)

Tuesday, April 1, 2008 | 0

By Mullen & Filippi

The rain is disappearing, everything is in bloom. Spring is here! Time for Spring Break and a great getaway! While you’re relaxing in the sun, you might want to brush up on the latest from the world of California Workers’ Compensation…

A Day at the Beach! Lien claimants are smiling in the sun.

Various WCAB panels, in recent decisions, have interpreted Labor Code section 4903.5 squarely in favor of lien claimants. That section, as you may know, deals with time limitations with regard to filing liens in WC claims. The concept of a hard and fast statute of limitations in workers’ comp continues to become more elusive with these recent rulings, which provide, among other things, that:

• A defendant’s receipt of a bill contemporaneously with provision of services serves as a lien even if no lien was filed with the board
• Defendants who become aware of the provision of medical services are then bound by regulatory duties owed to lien claimants; and, of particular concern
• A failure of a defendant to serve a medical provider with copies of settlement papers appears to toll the statute of limitations as to filing of a lien claim (LC 4903.5).

With this string of rulings, the WCAB is making a clear statement – one you are advised to consider when arguing that a lien claim has been filed too late to justify any payment. Stay tuned for more developments.

Bummer, Dude! The first crack at EAMS data entry goes awry.

The WCAB’s turn toward ultra high tech continues and the state says we’d better get ready. As a first step, the WCAB’s Court Administrator sent out a message to California WC attorneys in mid-March encouraging them to use provided spreadsheets to update their contact and State Bar information. The results, however, proved to be less than ideal as scores of attorneys found data entry within the provided spreadsheets to be, well, impossible! We’re sure, however, that the glitches will be ironed out soon, and that the state’s new $36 million system will be up and running this year. We are all looking forward to a system that promises a more time efficient way to process claims – without all that pesky paper!

If you’d like to keep up on the very latest in EAMS progress, check out the state’s new e-newsletter at: http://www.dwc.ca.gov/eams

Make sure those are prescription shades. The fine print matters in those C&Rs.

A mid-March Court of Appeal decision, Belletich v. Carley, No. B199968, 3/12/08 (not certified for publication), affirmed a WCAB ruling that an applicant had indeed settled her rights to maintain a civil action against her employer when she settled her WC claim with a Compromise and Release Agreement. In the settlement document, there was a handwritten note indicating that the Agreement “contains adequate consideration to settle any and all claims for a job displacement voucher. This (release) settles all claim (sic) whether civil, administrative, federal, or state against defendants...” And we should note here that the applicant had filed a civil suit before she executed her C&R.

The Court of Appeal found that the above language did in fact settle out the applicant’s civil claims, citing two primary reasons: 1) the parties added the specific waiver language to a pre-printed settlement document; and, 2) the applicant failed to offer any evidence in support of the notion that the parties, in executing the C&R, specifically intended to exclude the applicant’s civil claim.

Even with the opinion remaining unpublished, we believe this ruling supports the addition of such language in many settlements you reach with your claimants. If the reviewing Workers’ Compensation Judge takes issue with such a waiver, or has concerns about adequacy of consideration, you can always address those concerns as they arise.

What do you mean I’m too old? Migden’s anti-discrimination bill moves along at the Statehouse.

Senate Bill 1115, authored by Senator Carole Migden of San Francisco, was passed by the Senate on March 10. This bill, now on its way to the State Assembly, seeks to ban the use of race, religion, color, nationality, age, gender, marital status, sex or genetic predisposition as factors in determining percentages of disability causation. If this bill becomes law, many indicate that evaluating physicians in WC cases will need to rely solely on medical evidence in consideration of apportionment per the requirements of Labor Code sections 4663 et seq, leaving consideration of various medically-identified risk factors and tendencies in limbo. The defense community argues that the net effect of Senator Migden’s bill would result in California carriers and employers being responsible for indemnity payments for conditions having nothing to do with the industrial injury. We’ll be sure to keep you posted as to bill progress as these key issues are discussed by our state assembly.

Ready for a fight! Amicus briefs filed in Benson.

In Benson, you will recall that the WCAB found that separate injuries reaching P&S status at the same time now require separate PD awards, thereby overturning what has been known for many years as the Wilkinson rule. The case is now in the hands of a state appellate court, and earlier this month, both sides submitted their amicus curiae (“friend of the court”) briefs to assist the court in considering this critical issue. The defense community was represented by the California Workers’ Compensation Institute and the applicants were represented by the California Applicant’s Attorneys Association.

Once the Court of Appeal has reached its decision, we’ll let you know the outcome, so make sure to come back to work after your Spring Break!

A Final Note on Reconsideration

Congratulations go out to Mullen & Filippi's own Darlene DeGuzman (San Francisco office) on her successful petition for reconsideration in the Rodriguez v. Able Building Maintenance/Zurich matter (SFO 0487591). The trial judge in that case had found, based on the applicant's testimony, that he'd suffered an industrial injury to his back. Ms. DeGuzman filed a petition for reconsideration, asserting that the trial judge's decision was not based on substantial evidence. In her petition, she noted that the applicant had been inconsistent in terms of his description of the injury. On reconsideration, the WCAB picked up on that fact, noting finally that the applicant's statements over the life of the claim were just "too inconsistent to be of solid value." For this reason, these statements could not form the basis of a finding of industrial injury. This is an encouraging finding by the WCAB and one that reminds us that, in certain cases, such appeals can and do prove to be successful. Good job, Darlene!

Mullen & Filippi is a workers' compensation defense law firm based in Sacramento with 11 offices located throughout Northern and Central California. This column was reprinted from the firm's most recent bulletin with its permission.