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GMK Alert - Ogilvie Writ Granted by First Appellate District
The California First District Court of Appeal has granted a Petition for Writ of Review in the matter of Ogilvie v. WCAB and City and County of San Francisco on August 20, 2010. In so doing, they have consolidated the separate petitions for writ of review filed by both the applicant and the City and County of San Francisco.
Coming one day after the Sixth Appellate District issued their published opinion in the Joyce Guzman matter; the First District Court of Appeal has directed that briefs be filed to address specific inquiries by the court.
Recognizing that Labor Code §4660(c) provides that the PDRS is "prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule” the court acknowledged in the Costa decision that parties retain the opportunity to present rebuttal evidence to ratings under the PDRS, at least initially, on a case by case basis.
In Ogilvie, the court has asked the parties to address the following specific questions:
1.What must a party show to rebut the presumption in Labor Code §4660?
2.Is showing that claimant’s diminished earning capacity is different from the diminished earning capacity reflected in the PDRS for the claimant’s scheduled rating sufficient to rebut the presumption in LC §4660?
3.Should a general rule be formulated that provides guidance on the showing necessary for a party to rebut the presumption in LC §4660? If so, how should the general rule be articulated?
Petitioner Ogilvie must file her brief before August 30, 2010. Respondent WCAB and the City and County of San Francisco may then file opposition briefs on or before September 10, and Ogilvie will be allowed until September 20, 2010 for a supplemental reply brief. The matter will thereafter be set for oral argument.
What this means for you
The September 3, 2009 WCAB en banc Ogilvie decision is still good law, notwithstanding the Court of Appeal’s grant of this writ. Pending completion of this proceeding individual WCJs are still free to apply Ogilvie when appropriate.
However, in the interests of judicial economy a prudent WCJ may defer any determination of Ogilvie issues pending the outcome of the Court of Appeal’s decision.
GMK will continue to aggressively defend applicants’ Ogilvie claims before the WCAB and raise the issue of deferral of Ogilvie issues pending the outcome of this Petition for Writ of Review.
Los Angeles WCAB Issues Notice of Intention to Consolidate and Stay All Lien Proceedings Regarding Compound Pharmaceuticals
Presiding Judge Jorja Frank of the Los Angeles WCAB, acting on the court’s own motion, has issued a Notice of Intention to Consolidate and Stay All Lien Proceedings Regarding Compound Pharmaceuticals.
According to the terms of the Notice of Intention, the Los Angeles WCAB District Office receives approximately 400 compound pharmacy liens each month. The court has determined that there are common issues of law and fact with respect to these lien claims and that consolidation would be appropriate.
A hearing on the court’s motion has been scheduled for October 6, 2010 at 10:00 am. The WCAB has invited all compound pharmacy lien claimants, their representatives and defendants with pending liens to attend the hearing.
If the Notice of Intention to Consolidate is ultimately granted, all existing compound pharmaceutical liens at the Los Angeles WCAB District Office will be brought into a consolidated action. During the pendency of this action, no lien claimant will be allowed to prosecute a lien for compounded pharmaceuticals at the Los Angeles WCAB District Office.
Compounded pharmaceuticals are typically topical creams or gels containing a base product combined with varying doses of medicines. The creams and gels are designed to be applied directly to the skin of the patient for therapeutic benefit.
The liens for these compounded pharmaceuticals remain a hot button issue. The charges for compounding common pain relievers and herbal remedies are often poorly described and inconsistent with NDC prescription allowances for the totality of the compounded ingredients. Further disputes arise over appropriate charges for compounding the medicines, dispensing and related fees. Although the OMFS provides that compound medicines should not cost more than the NDC price of the ingredients, plus a compounding and dispensing fee, many providers are including “proprietary formulations” and other methods to establish a usual and customary fee in excess of the guidelines. In the meantime, the compounding of these medicines remains a potentially lucrative side business for many practitioners, pharmacy management companies and third-party pharmacies.
What this means for you
The Notice of Intention applies to the Los Angeles WCAB District Office only, although it is likely to have a ripple effect throughout Southern California.
GMK recommends that in light of the proposed consolidation, defendants should request deferral of lien claims for compounded pharmaceuticals filed with other WCAB District Offices pending the outcome of the Notice of Intention.
If the Notice of Intention is granted, it is likely that other Southern California WCAB District Offices will want to move their compound pharmaceutical liens into the consolidation at the Los Angeles office.
GMK will issue another Alert advising as to the outcome of the October 6, 2010 hearing.
The California Sixth Appellate District, in an opinion certified for publication, has affirmed the WCAB decision in the case of Joyce Guzman v. Milpitas School District.
In a 28 page opinion, the California Sixth Appellate District has affirmed the WCAB decision regarding use of any chapter, table or page in the AMA Guides Fifth Edition to appropriately assess permanent impairment.
While this decision will appear to be a victory for Applicants, the Court of Appeals sets an encouragingly high standard for potential exploitation by the defense.
The following excerpt illustrates the court's approach.
“…the PDRS has expressly incorporated the entire Guides, which necessarily includes its instructions on the proper application of the chapters pertaining to each specific body area or system—notably, the authors' recommendation physicians use clinical judgment when a condition is not covered by the impairment ratings in the Guides. The Board's decision is consistent with those instructions by acknowledging the necessity of the physician's exercise of "judgment, experience, training, and skill in assessing WPI."
At the same time, however, the WCAB majority did not explain how far the physician may go in relying on the "four corners" when the descriptions, tables, and percentages pertaining to an injury do not accurately describe the injured employee's impairment. If the physician expresses the opinion that the chapter applicable to a particular kind of injury does not describe the employee's injury, but all other chapters address completely different biological systems or body parts, it would likely be difficult to demonstrate that alternative chapter supplies substantial, relevant evidence of an alternative WPI rating. In order to support the case for rebuttal, the physician must be permitted to explain why departure from the impairment percentages is necessary and how he or she arrived at a different rating. (Emphasis added - GMK) That explanation necessarily takes into account the physician's skill, knowledge, and experience, as well as other considerations unique to the injury at issue. In our view, a physician's explanation of the basis for deviating from the percentages provided in the applicable Guides chapter should not a priori be deemed insufficient merely because his or her opinion is derived from, or at least supported by, extrinsic resources. The physician should be free to acknowledge his or her reliance on standard texts or recent research data as a basis for his or her medical conclusions, and the WCJ should be permitted to hear that evidence. If the explanation fails to convince the WCJ or WCAB that departure from strict application of the applicable tables and measurements in the Guides is warranted in the current situation, the physician's opinion will properly be rejected. Without a complete presentation of the supporting evidence on which the physician has based his or her clinical judgment, the trier of fact may not be able to determine whether a party has successfully rebutted the scheduled rating or, instead, has manipulated the Guides to achieve a more favorable impairment assessment“. (Emphasis added – GMK).
What this means for you
Too many physician reports are often lazy when it comes to explaining the methodology reached in the formulation of their opinions. This is the crux of the defense of the Guzman decision. Your defense counsel should be properly examining any deviation from the appropriate chapter and table of the Guides is being used under this Guzman decision by analogy. By supplemental report, by cross examination of the physician, or by trial brief, the defense can present convincing arguments that deviation from the AMA Guides requires meeting substantial thresholds that are not met by a casual reference to another chapter or table.
Goldman Magdalin and Krikes is ready to challenge any deviation from the strict application of the AMA Guides under this Guzman decision where appropriate, and argue on your behalf to minimize attempts by physicians to artificially inflate impairment otherwise provided for in the Guides.
Panel decision denies industrial psychiatric treatment notwithstanding medical evidence that such treatment was medically necessary.
The Workers’ Compensation Appeals Board, in a panel decision issued July 7, 2010, determined that there was insufficient evidence to support an award of psychiatric care to an applicant who sustained multiple orthopedic injuries and industrial headaches.
The applicant had been employed by the defendant for less than six months; however he strategically did not claim psychiatric injury which would otherwise have been barred by Labor Code §3208.3(d). Rather, the applicant claimed that he was entitled to psychiatric care on a compensable consequence theory.
Defendant rejected that argument setting forth that the claim for psychiatric benefits was not timely made and that there was no medical evidence to support the claim that psychiatric treatment was necessary to cure or relieve from the effects of the admitted industrial injury.
Recognizing that it has long been the law in California that a defendant must provide all reasonable and necessary care for non-industrial medical conditions to the extent that they impede the recovery of the accepted industrial injury, the defendant was clearly facing an uphill battle.
Moreover, defendant did not dispute that such psychiatric care was necessary, but resisted provision of psychiatric care as there was no showing in the medical record that the psychiatric treatment was made necessary by the industrial injury.
The WCAB panel rejected the applicant’s request for treatment and remanded the matter to the trial court to further develop the record on whether or not a relationship existed between the need for psychiatric care and the admitted body parts.
What this means for you
While provision of psychiatric treatment remains a hot button issue in workers’ compensation litigation, GMK's victory in demonstrating a lack of supporting evidence tying any portion of the need for psychiatric care to the industrial injury in question is reassuring.
Applicants who file claims for psychiatric treatment where the proof for such care is not strictly met will be faced with vigorous advocacy at trial and on appeal by GMK attorneys. This decision is exemplary of the tenacity, preparation, and professionalism you can expect from our firm.
GMK extends our congratulations to San Diego partner Jeff Cohen and the entire GMK San Diego team for their efforts in vigorously pursuing our client’s interests.
Jeff can be reached at jcohen@gmklaw.com
Goldman Magdalin & Krikes is proud to welcome distinguished attorney Larry Kirk to our Los Angeles office.
First | Previous | Next | LastLawrence I. (“Larry”) Kirk, a member of the State Bar of California since 1964 and a certified specialist in workers’ compensation law, has joined the firm for practice in our Woodland Hills/Los Angeles office. A former shareholder/branch manager of a major statewide workers’ compensation defense firm, Larry is a juris doctor graduate of the UCLA School of Law, where he achieved the highest academic honors of Law Review and Order of the Coif. As an appellate specialist, Larry was part of the winning team in Welcher/Brodie, the monumental California Supreme Court decision which held that SB 899 did not change the traditional percentage-from-percentage method of calculating apportionment to a dollars-from-dollars method favoring injured workers.
Larry can be reached at lkirk@gmklaw.com
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