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SAWW Increases for 2018

In 2018 the California State Average Weekly Wage (SAWW) will increase more than 3.6% for temporary total disability (TTD), permanent total disability (PTD) and other workers’ compensation benefits that are tied to SAWW increases. The SAWW is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 in the year preceding the injury.

Beginning with January 1, 2018 dates of injury and after, the new maximum weekly compensation rate will rise from $1,172.57 to $1,215.27 and the minimum weekly TTD/PTD rate will increase from $175.88 to $182.29.

The SAWW increases will also affect:

• TTD paid two years or more after the date of injury
• Life Pension and PTD payments for injuries on or after January 1, 2003
• Installment payments on death claims

What This Means for You:

GMK suggests that you diary your claims for January 1, 2018 or before that fit the criteria for the increase in benefits payments due to the rise in the SAWW. Discuss with your legal counsel the changes in benefit rates to insure correct adjustments in the payment of benefits to injured workers. Remember unpaid indemnity payments can result in penalties which only add to claim costs.

Paul J. Magdalin, Esq. - GMK Los Angeles Office

ORANGE COUNTY DISTRICT ATTORNEY INDICTS ATTORNEYS AND CAPPERS

On June 5, 2017 the Orange County District Attorney issued a press release advising that 10 applicant attorneys along with several members of an alleged capping operation were indicted for felony violations of the Business & Professions Code, the Labor Code, the Insurance Code and the Penal Code.

The following attorneys were indicted:

Jon Woods, Payman Zargari, John Jansen, Fari Rezai, Lionel Eduardo Giron, Dennis Ralph Fusi, Jorge Humberto Reyes, Rony M. Barsoum, Robert Irving Slater, and Robin Jacobs. These attorneys are well known to the workers’ compensation defense community.

According to the Orange County District Attorney the attorneys and six cappers were indicted for allegedly participating in a multi-million dollar workers’ compensation insurance referral scheme that exploited persons in predominantly Spanish-speaking communities. The press release also indicated that this was the “first phase of filing” pursuant to the District Attorney’s 3-year insurance fraud investigation.

The capping operation was tied to several providers of services including USA Photocopy, C&E Technology, Professional Document Management and Providence Scheduling. These providers were noted to be either owned or controlled by Carlos Arguello III and Edgar Gonzalez who were among the six non-attorneys indicted as alleged cappers.

Below is the link to the Press Release from the Orange County District Attorney’s office regarding the indictment of the attorneys and cappers.

http://orangecountyda.org/civica/press/display.asp?layout=2&Entry=5203

WHAT THIS MEANS FOR YOU

It is unclear at this early stage how this will ultimately play out. We may see some admissions of guilt for the purpose of obtaining leniency. However it is likely that there will be an extended period of time while these fraud allegations are litigated. It should be noted that indictments are only allegations of criminal behavior and are not actual convictions. Accordingly it is not likely that the indicted attorneys will simply walk away from their cases and will probably continue to pursue them. It would not be surprising to also see a number of substitutions of attorneys. We don’t think it is likely that the individuals who filed these claims will simply dismiss them. All defendants should remain vigilant when defending cases that are pursued by these applicant’s attorneys. In that regard your attorneys should be questioning the applicants in depositions as to how they were referred to and ultimately retained these attorneys.

Larry Preece, Esq. - GMK Orange County Office
Paul Magdalin, Esq. - GMK Los Angeles Office

New Face at GMK Bay Area Office

GMK is proud to announce that Kimberley S. Gaskill has joined the firm in our Bay Area Office.

KIMBERLEY S. GASKILL, Esq.

Kimberley Gaskill attended Pace University in Pleasantville, NY where she earned her undergraduate degree in Political Science in 2000. She then continued her education at Thomas Jefferson School of Law in San Diego where she received her Juris Doctorate in 2003.

Ms. Gaskill became licensed to practice law in California in 2004, and has practiced in a number of areas during her career, including insurance coverage/bad faith, construction defect, medical malpractice, and general civil litigation. Before joining GMK, she worked as an Applicant’s Attorney in Workers’ Compensation in Southern California. Ms. Gaskill also spent 8 years as a Workers’ Compensation Defense Attorney in the Inland Empire before moving to the Bay Area. Ms. Gaskill specializes in Workers' Compensation Defense where she represents insurance carriers, TPA's, and self-insureds. She also defends Labor Code Section 132(a) and Serious & Willful Misconduct claims.

Ms. Gaskill can be contacted:

Bay Area Office
111 Anza Boulevard, Suite 308
Burlingame, CA 94010
(650) 401-6460
kgaskill@gmklaw.com

GMK welcomes Kimberley to the firm.

What is Substantial Medical Evidence?

REMINDER:

Substantial evidence is based upon reasonable medical probability.

A medical opinion is not substantial evidence if it is based upon:

• Facts no longer correct, inadequate medical histories or examinations, incorrect legal theories, surmise, speculation, conjecture or guess.
• A physician’s conclusions absent any reasoning behind the physician’s opinions.
• Improper disclosures as directed by Labor Code Section 4628.
• An incomplete medical report.

The Elements of a Permanent & Stationary Medical Report should include:

• History of Injury
• List of Complaints
• Medical History
• Findings Upon Examination
• Diagnosis
• Opinion on Disability
• Cause of Disability
• Medical Treatment
• Permanent and Stationary Status
• Apportionment to Causation
• Signature and Disclosure

Without these elements present in a medical report, the report is NOT considered substantial medical evidence.

What this means for you:

TIP:

In order for a medical report to be admissible, it MUST constitute substantial medical evidence. It is critical to review medical reports promptly and determine if it meets the criteria for substantial medical evidence. If it does NOT meet the criteria and elements of the report are missing and you need the report to be admissible before the WCAB, immediately request a supplemental report from the physician and be specific of what is needed to make the report admissible. To avoid any question of ex-parte communication, the Applicant Attorney on represented cases should be notified and sent a carbon copy of the letter. If the Applicant is not represented, the Applicant also must be sent a carbon copy of the letter. Notifying all parties can eliminate possible litigation on this issue.

Apportionment to Genetics

The 3rd District Court of Appeals has ruled causation for an injured worker’s permanent disability can be apportioned to genetics.

The case in the decision was a 29 year old police officer, Christopher Rice, who pled a cumulative trauma injury to his neck. The claim was accepted by his employer, the City of Jackson and the medical-legal process began with the Qualified Medical Evaluator, Dr. Sloane Blair.

Dr. Blair diagnosed Mr. Rice with degenerative disc disease and opined that the injury was due predominately to his personal history including genetic causation (49%) and 17% to his employment with the City of Jackson, 17% his previous employment history and 17% his personal injuries. She supported her argument with a recent article in the North American Spine Society and the American Academy of Orthopedic Surgeons that described how heredity and genetics play a significant part in the degenerative disease of the spine.

The Workers’ Compensation Judge used the apportionment percentage applied by Dr. Blair’s report and reduced the permanent disability. But, the WCAB overturned the decision.

In part, the WCAB overturned the WCJ’s decision due to Dr. Blair’s report failing to meet the standard based on the 2005 en banc decision of Escobedo v. Marshalls which requires a doctor to explain why and how that factor was causing the injured worker’s disability. The WCAB also went on to dispute that apportionment could be of disability to “impermissible immutable factors” such as gender, race and age.

The 3rd District Court of Appeals disagreed with the WCAB and found that Dr. Blair’s report had properly apportioned the causation of Mr. Rice’s disability. The court found that Dr. Blair’s report was substantial medical evidence and Mr. Rice’s disability was caused predominately by genetics and partially by the industrial injury.

At this time, it has not been determined if the appeal will go up to the Supreme Court of California.

What this means to you:

It is imperative to subpoena prior medical records to garner documentation for apportionment of permanent disability to nonindustrial conditions or diseases, a pre-existing disability or a post-injury disabling event which can now include heredity and genetics.

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