Legal Odds and Ends to Workers' Comp

Saturday, August 13, 2005 | 0

Occasionally there is information that I think would be interesting and informative to recipients of my periodic missives but not sufficiently interesting or expansive enough to warrant a complete message. I am going to save up a number of those items and send out a periodic update on such multiple topics so that these "legal odds and ends" are provided to you.

CIGA Update:

Many of us were waiting with great interest to see what the Supreme Court might do with the appeals in the Argonaut v WCAB (Hooten) and American Motorists v WCAB (Weitzman) cases regarding the ability to obtain contribution from CIGA on awards with joint and several liability. The final word is now in as the Supreme Court denied the Petition for Review in both cases on July 27, 2005. Each of these cases is now final and the WCAB holding in the Gomez v Casa Sandoval & Golden Eagle (en banc) case is now toast. Defendant's are left with the option of trying to convince a WCJ that CIGA should be appointed as administrator in claims with joint and several liability on equitable grounds as their only remedy, a step that CIGA will certainly contest.

Green v WCAB Case (Re: LC 5814) Final:

The California Supreme Court issued its denial of applicant's Petition for Hearing in mid-July. This case therefore is now final. Green had determined that the provision of LC 5814 as amended effective 6/1/04 applied to existing cases. The same holding in Green has also been made by the WCAB in Abney v Aero Energy (en banc) and the 1st Appellate District in an unpublished decision in UAL v WCAB (Connor). This issue appears therefore to be well settled at a relatively early date after the legislative change was made.

Sandhagan Writs Granted:

The Court of Appeals has granted the Petitions for Writ of Review in the Sandhagen cases. These cases present an unusual circumstance as both sides have Petitions for Writ of Review from different WCAB en banc decisions, both were granted and then consolidated. The results in these cases will give the industry additional guidance on the parameters of Utilization review and how that process interacts with the WCAB. In Sandhagen the WCAB had ruled that the time frames for UR were mandatory and failure to meet them eliminated the UR process from consideration by the WCAB. Applicant has appealed the WCAB determination that defendant can obtain a QME even though there was never an objection under LC 4062 and that UR was mandatory to deny or limit medical treatment.

Deposition of UR Physician Prohibited:

For the most part, I rarely comment on writ denied cases in these messages because the level of authority is relatively low and somewhat unreliable (this can be shown by the 2 or 3 cases where appellate courts denied Petitions for Writ filed on the same issue as in the Sheftner case, with the appellate courts denying the writ in reliance on Scheftner, even as the WCAB was clearly acknowledging that the decision was likely to be overturned in its own holding in Escobedo and after a Petition for Writ of Review had been granted).

However on issues where there is no other legal authority, a writ denied case certainly has some value. Such a case is Aguilar v WCAB, 70 Cal. Comp. Cas 885 (writ denied). In this case the applicant sought to depose the Utilization Review physician for the defendant and obtained an order allowing the deposition of the UR doctor. Defendant (SCIF) appealed by Petition for Removal, arguing that the deposition of the UR doctor was not authorized by statute and would significantly disrupt the operation of their UR department and cause delays in authorization of other claimants. The WCAB granted the Petition and reversed the Trial Judge's order allowing the deposition. The Board noted that there was already an AME in the case, that the proper means to resolve the dispute moved from 4610 to 4062 and that the AME needed to address the issue. The court also noted that the lack of discovery after the UR decision limited the right to the deposition.

By attorney Richard "Jake" Jacobsmeyer, managing partner of the Concorde office of Adelson, Testan, Brundo & Popolardo. Jake can be reached at richardjacobsmeyer@atblaw.net.

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