California Appellate Case Status Summary
Saturday, April 21, 2007 | 0
By Jake Jacobsmeyer
Ordinarily I wait until the Appellate Courts or the Workers' Compensation Appeals Board issue their opinions to provide reports to you.
However there are so many significant cases currently pending and the impact on the everyday handling of claims is so significant that I thought I would provide a brief status on the cases that are currently on appellate review and some commentary on the impact these cases might have on current and future handling of claims:
| Case Name | Appellate Court | Date Granted | Date for Argument (if set) | Estimated Decision Date | Summary and Discussion of Issues in Case |
| Welcher, Brodie, Strong, Lopez, Williams, Davis, Shevchuck, Torres etc. | California Supreme Court | 11/15/06 | 04/03/07 | 07/01/07 | Consolidated and deferred cases will decide which methodology is used to calculate apportionment. Subtraction based on the % of PD, $ of prior award at current rates or Weeks of prior award. Will have major impact on thousands of case currently pending and in the future |
| Sandhagen | California Supreme Court | 02/07/07 | Not set estimate 10/08 for oral argument 3/2009 | Issue is ability of a defendant to use alternate methods of disputing medical treatment issues; UR vs. the medical legal process under Labor Code Section 4062. If the SC rules that UR is mandatory to delay, deny or modify treatment, defendant's options will be further limited in disputing medical issues. | |
| Smith/Amar | California Supreme Court | 04/18/07 | Not set Estimate Oral argument in early 2009 | 5/2009 | Supreme Court has granted review of award of attorneys fees under Labor Code Section 4607 where the issue was a dispute over medical treatment. Appellate court had ruled that defendant's denial using proper UR procedures was the effectively a "Petition to Terminate" medical care and carried the same potential for attorney fees. Court of Appeal effectively provided the ability for Applicant Attorneys to obtain an award of attorney fees in cases where defendant exercised their rights to contest medical care within the statutory process. With grant, the appellate decisions are now depublished and not citable as authority. WCJs may not rely on the appellate decisions to award fees. (Rule 8.1105(e)(1) -- Thanks to William Anderson of SCIF for this citation) |
| Helm | 1St Appellate District | 4/4/07 & 4/3/07 | Not set yet estimate 10/07 | 2/2008 | Labor Code Section 4660(d) issues regarding use of the PDRS for pre 1/1/05 injuries. Does a CMLE issuing prior to 1/1/05 have to comment on the existence of PD to trigger use of pre-1/1/05 PDRS (Baglione issue) |
| Azizi | 1st Appellate District | 04/03/07 | Not set yet estimate 10/07 | 2/2008 | Labor Code Section 4660(d) issues regarding use of the PDRS for pre 1/1/05 injuries. Whether payment of TTD prior to 1/1/05 triggers requirement to issue 4061 notice and use of pre-1/1/05 PDRS (Pendergrass issue) |
| Chavez | 1St Appellate District | 02/15/07 | 05/08/07 | 09/07/07 | Labor Code Section 4660(d) issues regarding use of the PDRS for pre 1/1/05 injuries. Does a CMLE issuing prior to 1/1/05 have to comment on the existence of PD to trigger use of pre-1/1/05 PDRS (Baglione issue) |
| Chang | 3rd Appellate District | 12/07/06 | 06/19/07 | 09/07/07 | Labor Code Section 4660(d) issues regarding use of the PDRS for pre 1/1/05 injuries. Does Labor code require use of pre-1/1/05 PDRS for all pre 1/1/05 cases. (Aldi Issue) |
| Vera & Brooks (consolidated cases) | 4th Appellate District | 01/22/07 | Not set yet Estimate 7/07 | 11/07/07 | Labor Code Section 4660(d) issues regarding use of the PDRS for pre 1/1/05 injuries. Vera's issue is sufficiency of medical report to trigger use of Pre 1/1/05 PDRS. Brooks is unknown at this time to this author. |
| Liang | 1st Appellate District | 04/04/07 | Not set yet estimate 10/07 | 02/07/07 | Proper procedure to follow for second surgical opinion issue. |
| Burkett | 3rd Appellate District | 01/22/07 | 05/15/07 | 08/07/07 | Defendant's liability for self-procured spinal surgery. |
With the likely appeal of both the Pendergrass and Baglione decisions from the WCAB's recent en banc decisions reversing the prior en banc decisions (both in the 6th District), there is a very good chance that we will obtain competing decisions from different Appellate Districts which is likely to trigger Supreme Court review of at least some aspects of the issues presented by this section. Since there are at least three significant and different issues that are winding their way up through the courts on this code section, we are likely to have a period of chaos for some time in the immediate future.
I am recommending to clients that they should give serious consideration to compromise resolution on these issues which the uncertainty lasts. If the Supreme Court grants a hearing on some or all of the cases on these issues; we are not likely to get the Court's consideration for an expedited review as was given in the Welcher/Brodie/Lopez etc. cases on the calculation of apportionment.
Disc Surgery as "Amputation"?
While not included in the above list, I have it on good authority that the WCAB will shortly be issuing an en banc decision on the 104/2 year TTD limitation.
I suspect the issue is the commencement date for the 2 year window and the 104 time frame. Controversy exists on how we are to calculate the 104 weeks. Are we to use the first "payment" of TTD (even if for a period of time) to start the 104 weeks or does the beginning period of TTD, regardless of date of payment, begin the period.
This author believes the ultimate answer will be the date of payment controls but reasonable minds can differ on this issue.
There will be other aspects of the TTD limitations that will also be winding their way up the appellate ladder. One of the most interesting is the issue of whether the surgical remove of a part of the body (such a disc surgery or removal of the end of the clavical) qualifies as an "amputation" and expands the TTD limit to the 5 year exception. There are at least three trial decisions on this issue and we can certainly expect, regardless of the result at the WCAB, that this issue will also find its way into multiple appellate districts.
Attorney's Fee for Contesting UR Decisions No Longer Citable:
Probably the biggest news in the above grid is the decision of the Supreme Court to grant the defendant's Petition for Hearing in the Smith and Amar cases.
These cases had made a very significant extension of Labor Code Section 4607 which states, in very clear and unambiguous language, that a Petition for Termination of an Award, if unsuccessful, requires an award of attorneys fee for the Applicant Attorney efforts in contesting the Petition.
The Appellate Court, ignoring the plain language of the statute, decided the legislature intended an completely different result than was set out in the statute and pulled an intent of the legislature out of its appellate magic hat that provided for attorney's fees whenever a defendant denied a specific medical recommendation, that was ultimately awarded, even if the actual provision of medical care was voluntary on defendant's part after the process under Labor Code Section 4062 was followed.
Defendant's can only hope that the Supreme Court decides to interpret the language of the statute, not devine a result from the statute that appears nowhere in its language, With the Supreme Court's grant, the appellate decision becomes a nullity and is no longer citable as authority. While it might be reasonable in some situations to compromise the issue of such attorney fee requests, there is no reason at this time to cave in on the issue.
I will, of course report on the individual cases as they are issued from the various courts.
Richard "Jake" Jacobsmeyer is a partner in the firm Shaw, Jacobsmeyer, Crain & Claffey and can be reached at jakejacobsmeyer@shawlaw.org.
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