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:
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:
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
Tel: (510) 645-7172
Fax: (866) 563-0092