What is considered binding authority in workers compensation law?
In California, binding authority comes from two sources of decision-making in the court system: En banc WCAB decisions and published cases from the California courts of appeal. En banc decisions are decisions made by the Appeals Board as a whole. These types of matters involve legal issues of first impression, or issues that have never been argued before the court. All other sources, including three-member WCAB panel decisions and California Workers' Compensation Reporter decisions, are used as persuasive authority and Workers Compensation Judges are not bound by them.
When objecting to disputed body parts, is utilization review required?
Under LC4610(L), utilization review (UR) is not required for denied parts of body or medical conditions that have not been accepted. In these situations, UR is deferred and a deferral notice should issue in response to the requested treatment.
Once it is determined that the defendant is liable for the condition or part of body, then there are 30 days from the determination to issue a retrospective UR for all of the treatment requests that were deferred. Typically, the date of the determination is either the day that we received a PQME report finding the part of body compensable or an Order finding the part of body compensable.
Is an Explanation of Review (bill review) required for contested copy charges?
Yes. Where liability for copy services charges are contested, defendant has 60 days from receipt of the invoices to issue an objection to charges under Labor Code Section 4622(a). Any and all objections to the invoices must be contained within an Explanation of Review per Labor Code Section 4622(e) and 8 CCR 9794(c). Any objection not contained with the Explanation of Review is deemed to have been waived by defendant.
Temporary Total Disability
Does an employer have any rights if the applicant is receiving TTD for an admitted industrial injury while concurrently collecting income from a self-employment occupation?
According to Labor Code Section 4909, any type of payment, allowance, or benefit received by the injured employee during the period of his incapacity can be used by the appeals board in fixing the amount of the compensation to be paid. The WCAB construed this section in Becerra v. City of Fresno, (2013) Cal. Wrk. Comp. P.D. LEXIS 96 to include situations where an applicant is co-employed while receiving TTD for an admitted industrial injury. In that case, the applicant sustained a shoulder injury at his place of employment in December of 2010. He also simultaneously received earnings from his self-employed janitorial business, which began in October of 2010. The court found the applicant's dual sources of income fell under Section 4909 and ruled that the defendant was entitled to a credit of the income earned by the applicant's self-employed janitorial business.
In cases where we are dealing with this type of issue, our attorneys first determine the profit amount generated from the applicant's self-employed occupation. However, if we're unable to determine this figure, we consider all factors that may be relevant to TTD or any other type of payment, allowance, or benefit present in the case to see if Section 4909 can be applied. Our primary objective is always to save you costs.
Permanent Disability Apportionment
Is an employer responsible for both the medical treatment of an industrial injury and any disability arising directly from unsuccessful medical intervention for that injury?
Yes. In Hikida v. WCAB, (2017) 12 Cal.App.5th 1249, the California state appellate court ruled that employers remain liable for both of these payments since “nothing in the 2004 legislation had any impact on the reasoning that has long supported the employer's responsibility to compensate for medical treatment and the consequences of medical treatment without apportionment.” In this case, the applicant sustained a permanent injury from surgery he underwent to correct carpal tunnel syndrome that he had developed while working for the defendant. The court explained that the reasons behind this long-supported rule is based on two policies: “(1) the concern that applying apportionment principles in medical care would delay and potentially prevent an injured employee from getting medical care; and (2) the fundamental proposition that workers' compensation should cover all claims between the employee and employer arising from work-related injuries…”
When confronted with this question in practice, our firm tackles this question by first examining whether the employer is liable for the medical treatment that caused the disability in question. If the employer is found liable, our firm will design a defense strategy in line with the Hikida ruling and will fight vehemently for our clients to try to mitigate expenses where we can. If the employer is not liable, we will apportion the costs by keeping in mind those factors listed in Hikida, which considered “'the current disability and parcel[ed] out its causative sources -- nonindustrial, prior industrial, current industrial -- and decide[s] the amount directly caused by the current industrial source.'”
Permanent Disability Rating
What is the additive approach and how has it been applied in recent decisions?
The additive approach is an alternative method to calculate permanent disability ratings. It applies only in those cases when a physician or QME recommends it. In Athens Administrators v. WCAB (Kite), (2013) 78 Cal. Comp. Cases 21, the applicant had injured both his right and left hips and thereafter had hip replacement surgery performed on them. According to the QME's report, the applicant had 20% Whole Person Impairment (WPI) for each hip. The QME then combined the two hip percentages together to find 40% WPI for both hips. The panel QME had determined that because the two injuries had a “synergetic effect” on one another, the addition of the applicant's impairments was a better way calculate his WPI than the Combined Values Chart (CVC). The California Court of Appeals agreed with the panel QME's reasoning and found that adding impairments was “a more accurate depiction” of an applicant's overall impairment than the CVC.
In Diaz v. State of California, (2015) 2015 Cal. Wrk. Comp. P.D. Lexis 683, the WCAB affirmed a WCJ's additive approach to calculating the applicant's level of permanent disability by reasoning that the existent injuries presented “no clear overlap in impairments”.
Our firm is prepared to handle all types of emerging legal issues, such as the additive approach. When we encounter files that involve unique wrinkles in the law that may prove disadvantageous to our client, we anticipate, plan, and attack with a tailor-made, effective defense strategy for our client.