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Appellate View & Reviews 

April 19, 2007

Appellate Case Status Summary

Ordinarily I wait until the Appellate Courts or the WCAB 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

4/3/07

7/1/07

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

2/7/07

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 § 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

4/18/07

Not set Estimate Oral argument in early 2009

5/2009

Supreme Court has granted review of award of attorneys fees under Labor Code § 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 & 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 S.C.I.F. for this citation)

Helm

1St Appellate District

4/4/07 & 4/3/07

Not set yet estimate 10/07

2/2008

Labor Code § 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

4/3/07

Not set yet estimate 10/07

2/2008

Labor Code § 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

2/15/07

5/8/07

9/07

Labor Code § 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

12/7/06

6/19/07

9/07

Labor Code § 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

1/22/07

Not set yet Estimate 7/07

11/07

Labor Code § 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

4/4/07

Not set yet estimate 10/07

2/07

Proper procedure to follow for second surgical opinion issue.

Burkett

3rd  Appellate District

1/22/07

5/15/07

8/07

Defendant's liability for self-procured spinal surgery.


You will note the plethora of cases involving Labor Code § 4660(d) and question of which PDRS to use for pre 1/1/05 injuries.

 With the likely appeal of both the Pendergrass and Baglione decisions from the W.C.A.B.'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 3 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 W.C.A.B. 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 W.C.A.B., that this issue will also find its way into multiple appellate districts .

Attorneys 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 § 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 § 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.  One source for some of this information is the W.C.A.B.'s website where cases where appellate review has been granted are listed.  Click on the following web site for a link to this page:

Appellate Cases Granted


Richard M. Jacobsmeyer

Certified Specialist, Workers' Compensation Law

The State Bar of California Board of Legal Specialization

 

SHAW, JACOBSMEYER, CRAIN & CLAFFEY

475 – 14th Street, Suite 850

Oakland, CA 94612

Tel: (510) 645-7172

Fax: (866) 563-0092

jakejacobsmeyer@shawlaw.org

Certified Specialist, Workers' Compensation Law The State Bar of California Board of Legal Specialization
Shaw, Jacobsmeyer, Crain & Claffey, PC
475 14th Street Suite 500, Oakland, CA 94612 Phone:(510) 645-7172 Fax (866) 563-0092

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