Work comp New Year's resolutions

Wednesday, January 23, 2008 | 0

By Mullen & Filippi

We hope your holiday season was spectacular and that you’re energized and ready for what promises to be a lively year in California Workers’ Compensation. We thought we’d take a few moments of your time to review some interesting comp-related New Year’s resolutions made by a variety of players…

Resolution One: Examine old issues with a new perspective. 30-year-old Wilkinson rule scrapped by WCAB panel.

In what has to be the most noteworthy ruling during the past month, the WCAB, en banc, has thrown out the well-seasoned Wilkinson doctrine. The WCAB, in Benson v. The Permanente Medical Group, OAK 0297895, has indicated very clearly that it believes that the Wilkinson rule is not consistent with the new apportionment requirements passed in 2004 as part of SB 899.

In the Benson case, the applicant was found by the Agreed Medical Evaluator to have suffered both a specific and a cumulative trauma injury. Apportionment was 50% to the specific and 50% to the CT. After trial, the WCJ issued a single award at 62% PD based on this reporting, combining the PD for both injuries by following the Wilkinson rule.

On reconsideration, the WCAB carefully examined the 30-year-old Wilkinson rule that allowed for the “concomitant merging of separate injuries into a single award of disability” and found that this practice “is contrary to the reforms set in place by SB 899…” The reforms (at LC 4663 et seq) demand that apportionment be to each cause of disability. As such, the WCAB found that the applicant was entitled to two separate awards of 31% PD each. The net effect? The applicant’s monetary recovery is substantially diminished. We’re pretty sure that the applicant’s bar has now resolved to fight this one, and we fully expect to see further litigation on this issue in the near future. We’ll keep you posted as developments unfold.

Resolution Two: Enforce the letter of the law. An interesting new ruling on attempted extensions of the 2-year TD cap.

About a week into the new year, a WCAB panel decided that a trial judge’s ruling extending the two-year TD cap by the length of a delay in provision of medical treatment was wrong and should be overturned. The panel failed to label its decision as “significant,” and as such, the decision is not citable. Still, it provides a window into the WCAB’s thinking as to this emerging area of dispute.

In arguing for an extension of TD benefits past the 2-year cap contained in the Labor Code, the applicant argued in this case that the defendants had caused two unnecessary delays between the treater’s recommendation of surgery and the actual provision of surgical authorization. Thus, the applicant argued that the defendants were obliged to extend the TD period past the 104-week cap to an additional period equaling the period of treatment delay. The trial judge agreed, but the WCAB, relying in large measure on the very clear wording of 104-week cap contained in LC 4656, disagreed.

The defense community is pleased with this ruling, but several similar cases are working their way up the appellate ladder, and we haven’t likely seen the last of this attempt to expand benefits. We resolve to keep you informed on this one, too!

Resolution Three: Pay what we owe. TTD and mileage reimbursement rates headed up, up, up!

It wouldn’t be a new year without some benefit increases! Please remember in your daily work that the maximum Temporary Total Disability rate in California has increased as of January 1st. The same is true for the rate for reimbursement of medical and legal-related mileage.

The new TTD maximum rate is $916.33 per week, this being calculated (for the second year now) based on the state’s average weekly wage.

The new mileage reimbursement rate is 50.5 cents per mile, up from 48.5 cents in 2007.

And here’s another reminder tap on the shoulder. Don’t forget that while applicants are still limited to a maximum of 104 weeks of TD (barring statutory exceptions), for dates of injury on/after 1/1/08, they now have 5 years in which to obtain these benefits.

Resolution Four: Keep on top of the issues. Here are some of the latest to get you started.
Workers’ Compensation carriers reported their most profitable year in California since 1997 according to a recent article appearing in the Workers’ Compensation Policy Review.

Just in time for the new year, the AMA Guides 6th Edition was shipped out to curious readers across the country. Remember – it would take legislative action for California to switch to the 6th Edition from the 5th, but we suggest you resolve to keep on top of new developments!

Governor Schwarzenegger has appointed Bay Area defense attorney Diedre Lowe as the state’s newest WCAB Commissioner. Congratulations to Commissioner Lowe, who most recently practiced with Hanna, Brophy et al. The Governor has also reappointed Commissioners Brass and Cuneo.

We are saddened to note the passing of North Bay applicants' attorney Richens Wootton on January 14. Mr. Wootton had recently celebrated his 50th year in legal practice and was a wonderful mentor to many. His presence and demeanor will be deeply missed and we send our condolences to his family and friends.

We are also saddened to note the recent, unexpected passing of Bay Area defense attorney Steven Jimenez, a partner with Adelson, Testan, Brundo & Jimenez. Mr. Jimenez was well-regarded within the Workers’ Compensation community and will be missed. Our condolences are extended to his family, co-workers and friends.
 
The Mullen & Filippi Bulletin is reprinted with the permission of the law firm.