September 2010

A Judge Cannot Rely on an AME in a Spinal Surgery Dispute

A WCAB panel found that a Judge could not rely on an AME (who apparently was not an orthopedic surgeon nor a neurosurgeon) to award spinal surgery to the applicant.  Vervalin v. Travelers Ins. Co.  Instead, the Judge must rely on either the opinion of the treating physician or the spinal surgery second opinion report obtained pursuant to Labor Code section 4062(b).

The AME in this case referred the applicant to an orthopedic surgeon who evaluated the applicant and recommended surgery.  This was non-certified by utilization review (UR).  After a trial, the Judge awarded the surgery, relying on the AME’s opinion.

On reconsideration, the WCAB panel overturned the judge noting that the Cervantes case required that when a treater recommends spinal surgery the employer must go through UR to dispute it.  If UR approves the surgery it must be authorized and if not, the employer must timely object within 10-days of receipt of the report under 4062(b) using the appropriate forms to request a second opinion.

Apparently, the parties and the Judge cannot get around this process by relying instead on the opinion of an AME.

LC 5405 is a Further Hurdle for Lien Claimants

Labor Code section 5405 provides that proceedings for the collection of workers’ compensation benefits must commence generally with the filing of an Application for Adjudication of Claim within 1-year from: (1) the date of injury, (2) the end of PD, or (3) the last date that medical treatment was provided.  In this case, neither the injured worker nor the lien claimant filed an Application on time.   A Judge nevertheless allowed the lien because the lien claimant had acted in a timely manner under Labor Code section 4903.5, which provides a separate statute of limitations specific to liens.

The WCAB panel overturned the Judge’s award and held that when the injured worker does not file an Application a lien claimant can do so but they stand in the shoes of the applicant and are bound by the same 1-year statute of limitations to initiate a case.  Medina v. SCIF.

Should Non-industrial Psyche PD Increase Employer Liability?

In a case now pending before the California First District Court of Appeal, the question is argued whether a pre-existing, non-industrial PD in a psyche case should not increase an employer’s liability by making it more difficult for the employer to raise the “good faith personnel” defense.

In the case of Cardozo v. San Francisco Unified School District, the reporting psychiatrist evaluated the claimed stress at work and found 60% of the Applicant’s cumulative trauma psyche injury was due to difficulties encountered in her daily job as a teacher and 40% was the result of personnel actions taken against her by her Principal for performance issues. The doctor went on to note that a 15% cause of her injury and psyche PD was pre-existing, non-industrial factors.

By taking 85% (100%-15% non-industrial = 85% industrial) of the 40% due to personnel actions, the doctor found that only 34% of the injury was apportioned to causal factors associated with events involving good faith personnel actions (85% x 40% = 34%). As established in the Rolda case, the substantial cause threshold for an employer’s good faith personnel defense is a minimum of 35% and thus that threshold could not be met in this case based on the doctor’s calculations. The WCJ in her decision found the following causes: 15% non-industrial, 51% (85% of 60%) due to Applicant’s daily job duties and 34% due to personnel actions.

Our basic argument was that the method of calculation used in this instance was unjust because it penalized the employer because there was apportionment to non-industrial causation.

The doctor and the WCJ have taken the 15% apportionment to non-industrial factors – disability that the employer did not cause and was not responsible for – and used it to mathematically reduce the effective percentage due to personnel actions. In this instance, the result is a reduction from 40% which meets the substantial cause threshold to 34%, which does not.  Had the apportionment to non-industrial factors not existed or not been applied in assessing the workplace stressors, the percentage attributable to personnel actions would have remained at 40% and the employer’s good faith personnel defense would apply.

The WCAB upheld the Judge on reconsideration but the Court of Appeal granted our Petition for Writ of Review.  Oral argument is set for October 18, 2010 at 10:00 A.M.

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