Happy New Year!!!
William Nathans
Editor
Another year has now come to an end. I hope everyone had a safe holiday. I want to wish all of you a very happy, healthy and prosperous New Year.
The coming year is, in my opinion, going to be, once again, like no other in workers' compensation history. We may get answers to the issues raised by
SB 899, or we may get many more questions; if the law survives. It seems that nuances are going to be more critical than ever. We are going to be busier than ever before, trying to balance delivering benefits and controlling costs.
The law is having the desired effect of reducing cost, but from an adjuster’s desk, I really have not seen a decrease in the number of claims. They might not be as severe, but they haven’t decreased. Is it just a matter of time before we end up back where we were?
I would also like to express my thanks to all of you, our readers for another year of your support. It is really appreciated by all of us.
Suggestions can be sent to Bill@adjustingworld.com
Compensability
I agree with Bill that compensability cannot be determined by any PTP unless he is part of a network. It would be ridiculous to entrust that determination to some PTP off the street whose involvement in the case is subject to lies and innuendo. He has no way of knowing what is industrial or not.
Only a QME can evaluate the facts leading up to a claim to decide if it is compensable or not. Even then, it is difficult. No treating doctor can possibly be given that responsibility, and we must hold them harmless, of course. Pay the bill for the first O.V. but step in quickly to get the worker to a Network or a QME doctor.
QME Function
I agree that the reforms of 1990 which established the QME system, and which were not repealed (and) still apply.
I believe you are correct that a QME is the ultimate person who decides whether a claim is industrial or not. I do not believe those guidelines were repealed. I do not see how a PTP could possibly make that legal determination.
So the PTP has no authority to determine compensability at all as far as I can see. Of course, I am not a lawyer, let alone a judge, but I agree with you.
John Norman Law
Rating Specialist
A Holiday Gift for the Applicant Side?
Stephen L. Kline, Esq.
ARMSTRONG LAW FIRM
stephenk@arm-law.com
Most of the significant cases that came down from the Courts and the WCAB, en banc throughout 2005 favored the employer / defense community. The trend was to support the intent behind SB 899 to reduce the cost of California workers compensation.
On December 20, 2005, a speed bump decision to the trend was issued by the Fifth District Court of Appeal. The CAAA rejoiced. The Defense community scratched their collective heads.
But, despair not. Pollyanna is here to brighten your day.
Keep your eye on the facts which with the E & J Gallo Winery v. WCAB (Dykes), (5 th District) 2005 Cal. App. LEXIS 1945 case are very important. They are the key to narrowing the impact of this decision.
David Dykes injured his back while working as a winery worker for E & J Gallo Winery (Gallo) in September 1996. As a result of the injury, a workers' compensation administrative law judge (WCJ) approved a stipulated agreement in 1999, to provide Dykes with future medical care and a 20.5 percent permanent disability award worth $11,680 in compensation. Dykes returned to work with Gallo with a lighter duty and a medical restriction of lifting up to 50 pounds.
In October, 2002, Dykes again injured his back while working for Gallo. In November 2004, a WCJ found that he was 73 percent permanently disabled after adjustment for age and occupation,
The WCJ calculated the 73% value at $104,305. From that, the WCJ subtracted the $11,680 in compensation previously paid to Dykes with the 1996 back injury and the attorney fees.
You ask …. what about the California Supreme Court decision of Fuentes case that mandated that the percentage of the earlier award (20.5%) should be deducted from the latter percentage (73%), yielding a 52.5% award, not too mention eliminating the lifetime pension? Didn’t the WCAB, en banc just reaffirm this principle with the Nabors case?
Maybe.
A WCAB Panel supported the WCJ’s interpretation. The case was taken up on Writ to the District Court of Appeal. The Fifth District also supported the WCJ’s decision and denied the Writ and affirmed the decision.
How could this happen?
The Court first reviewed causation and apportionment via Labor Code sections 4663 and 4664. They reaffirmed the legislation that states, “apportionment is "based on causation" and the "employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." This could be silver lining in an otherwise dark cloud.
The Court then extensively reviewed the three formulas of how to deal with prior awards. As you remember, Fuentes favored the percentage subtraction formula. The second formula was to subtract weeks and then multiply the week by the current rates. The third formula was to subtract the dollars. The Court felt that Fuentes decision was based on Labor Code section 4750 which was repealed and that a re-analysis was in order. Another silver lining in that a repeal of law eliminates it completely.
The Court apparently was moved by the argument that if Mr. Dykes had not had an Award in 1999, he would be 73% at 2002 rates. Add to that the legislation that an "employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment."
Mr. Dykes had only one employer who was self-insured. The Court said, “We limit our analysis to the present facts where the injured employee received a prior disability award while working for the same self-insured employer.”
Despite what the CAAA cheerleaders would have you believe, Fuentes and Nabors have not been mortally wounded. The facts and the Court limits its impact to different injuries with the same employer.
We still need to differentiate fact patterns where there are different employers for the different Awards and the cases where there is the same employer, but different insurance carriers or periods of insurance and periods of self-insurance. Each of these facts situations may yield different results from the Dykes case.
Interestingly, this case highlights that when CAAA argues a case without a strong employer / defense community opposition as an amicus, the playing field is definitely uneven and SB 899 victories are not certain. Complacency may be our strongest enemy. Defense is always a harder game.
Happy 2006! Thanks for your attention.
I’ve
been receiving a lot of e-mail and letters from readers who are
having difficulty getting the job they want. Many
haven’t job hunted in a long time and they are having trouble
with the interview process. Here are some commonly asked interview
questions and suggested ways to respond.
Title: NURSE CASE MANAGERS
Location: All of Northern California
Job Duties:
- Experienced Medical Case Managers
- Must have previous case management experience
- Local travel is required
- Must be computer literate
- Licensed in state of employment RN CCM & Bilingual a plus
Title: WORKERS' COMP ADJUSTERS, CLAIMS ASSISTANTS, & SUPERVISORS
Locations: San Francisco, Oakland, Concord, Walnut Creek, Pleasanton & San Jose
Job Duties:
- Adjusters and Claims Assistants
- Must have a minimum of 3 years experience handling workers compensation cases
- Knowledge of litigation, medical and rehab a must
- SIP a plus
Send resumes to recruiter@siennastaffing.com
Have an insurance related event coming up?
Email us the relevant information and we can place it in our Events Calendar. Send us a note with the relevant facts and sponsoring organization to eventform@adjustingworld.com
POLL
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