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Weintraub Tobin and Goldman, Magdalin & Krikes Present Worker's Compensation and Employment Law: Preventing Claims from Turning into Employment Lawsuits

Navigating a worker’s compensation claim in California can be challenging, to say the least. It involves a detailed understanding of several statutory schemes and steps along the way. Yet, processing the claim, insurance, and proper documentation can just be the start. Wary employers should carefully consider the labor and employment implications of a workers' compensation claim.

This complimentary webinar will discuss important topics followed by an extended Q&A to help employers manage these laws. Rarely do you get to hear from these industry experts in the same program.

Date: Wednesday April 25, 2018
12:00 noon - 1:00 p.m.

RSVP to Marketing@weintraub.com

Please register before April 18th.

Approved for one (1) hour MCLE. This program will be submitted to the HR Certification Institute for review. Certificates will be provided upon verification of attendance for the entirety of the webcast.

Pedro Hernandez (en banc)

On March 22, 2018, the WCAB issued En Banc decision, Pedro Hernandez, holding lien claimants’ §4903.05 declarations filed by 5:00 p.m. on Monday, July 3, 2017 were timely because the statutory deadline of July 1, 2017 fell on a Saturday.

Summary of Pedro Hernandez v. Henkel Loctite Corporation; Zurich (En Banc)

Labor Code section §4903.05 was amended in 2016 to add subsection (c) requiring a declaration, under penalty of perjury, by the lien claimant that the dispute was not subject to IBR and IMR and that the lien claimant was the employee’s PTP providing care through an MPN, was the AME or QME, provided employer’ authorized treatment, determined the employer had no MPN, medical treatment had been neglected, an expense incurred for emergency medical treatment, for certified interpreting for a medical-legal examination or for medical-legal copy services. The declaration became effective 1/1/17. Liens filed on or after 1/1/17 must be accompanied by the declaration upon lien filing. Liens filed between 1/1/13 and 12/31/16 were given a deadline of 7/1/17 to file the §4903.05(c) declaration. Failure to file the declaration shall result in the dismissal of the lien with prejudice by operation of law.

July 1, 2017 fell on a Saturday. Accordingly, §4903.05(c) declarations filed after the close of business at 5:00 p.m. on Friday, 6/30/17, and through the close of business at 5:00 p.m. on Monday, 7/3/17, resulted in the respective lien claimants exposed to litigation to determine whether the declarations were timely filed or whether the liens should be dismissed by operation of law.

On 8/14/17, the DWC dismissed 292,000 liens filed between 1/1/13 and 12/31/16 that failed to file the §4903.05(c) declaration. Numerous lien claimants filed petitions for reconsideration on 9/14/17 and on 10/3/17 the DWC reversed the dismissals of all §4903.05(c) declarations filed between 7/1/17 and 7/3/17 because 7/1/17 fell on a weekend. On 10/26/17, the Appeals Board issued an En Banc decision (Jose Guillermina Rodriguez, et al., 82 CCC 1390) addressing the petitions for reconsideration and held that the issue presented by lien claimants was moot based on the DWC’s reversal of the dismissals.

Pedro Hernandez (en banc) holds that §4903.05(c) declarations filed at or before 5:00 p.m. on Monday, 7/3/17, are timely as that is the next business day from the 7/1/17 deadline and the respective lien claimants are not barred from proceeding on the lien.

WHAT THIS MEANS FOR YOU:

Liens filed between 1/1/13 and 12/31/16 with §4903.05(c) declarations filed on or before 7/3/17 at 5:00 p.m. are timely (and not dismissed by operation of law) and the lien claimants may proceed on the lien. This case speaks solely to the timeliness of the §4903.05(c) declaration. The lien claimants should still be held to their burden of proof of compliance with the remaining requirements set forth in §4903.05(c).

Additional congratulations

Goldman, Magdalin & Krikes, LLP would like to congratulate:

Charles Amadi - Los Angeles Office
camadi@gmklaw.com (818) 755-0444

on having received notification last week from the California State Bar that he has passed the Workers’ Compensation Specialization Exam and has completed the first step to becoming a Workers’ Compensation Specialist.

Charles joins Kimberley Gaskill, Jessica Tyndall, Anita Abd and Brian Harrison as recently passing the Workers’ Compensation Specialization Exam.

All Partners of GMK whose primary practice is Workers’ Compensation Law are Certified Specialists in Workers’ Compensation. Additionally, many GMK Associate Attorneys are also Certified Specialist in Workers’ Compensation.

Congratulations!

Goldman, Magdalin & Krikes, LLP would like to congratulate:

Kimberley Gaskill - Bay Area Office
kgaskill@gmklaw.com (650) 401-6460

Jessica Tyndall - Central Coast Office
jtyndall@gmklaw.com (805) 548-8727

Anita Abd - Central Coast Office
aabd@gmklaw.com (805) 548-8727

Brian Harrison - Ventura County Office
bharrison@gmklaw.com (805) 777-7008

on having received notification from the California State Bar that they have passed the Workers’ Compensation Specialization Exam and have completed the first step to becoming a Workers’ Compensation Specialist.

GMK places emphasis on continuing education for our attorneys in the field of Workers’ Compensation. Currently, GMK has 28 Attorneys who are Workers’ Compensation Specialists in the firm.

County of San Diego (Pike) v. WCAB

On March 6, 2018, the California Court of Appeal filed its opinion in the case of County of San Diego (Pike) v. WCAB. The court published its decision.

Summary of County of San Diego v. Workers' Comp. Appeals Bd.

The Applicant, Kyle Pike, was employed as a deputy sheriff by the County of San Diego, when he was injured on July 31, 2010. In May 2011, the parties stipulated to a 12% permanent disability award. On May 26, 2015, Mr. Pike filed a petition to reopen for new and further disability. Pursuant to Labor Code section 4850, Mr. Pike requested salary continuation benefits in addition to temporary total disability benefits pursuant to Labor Code section 4653. By July 31, 2015, five years from the date of injury, the County exhausted all of the section 4850 and TTD benefits owed to Mr. Pike. However, Mr. Pike requested additional 4850 and TTD benefits after July 31, 2015. The County denied the request for benefits, citing Labor Code section 4656, which limits an Applicant’s entitlement to section 4850 benefits and TTD benefits to a period of five years from the date of injury.

A WCJ determined that the WCAB has “continuing jurisdiction to award temporary total disability benefits beyond five years” because the applicant filed a timely petition to reopen, and TTD benefits commenced prior to five years from the date of injury. As such, the WCJ awarded Mr. Pike the benefits requested. The County filed a petition for reconsideration. In a split decision by the Board panel, the WCJ’s decision was affirmed. The County filed a petition for review with the 4th DCA, requesting that the court annul the Board’s order.

The 4th DCA disagreed with the Board, stating that the WCJ’s interpretation of section 4656 is “not tenable”, and that the language of the statute is clear and unambiguous. [1] The court stated that the “plain language of section 4656, subdivision (c)(2), supports the conclusion that the board may not award temporary disability payments for any period of disability occurring beyond five years from the date of the workers injury.” [2] The court pointed out that there is both a maximum of 104 weeks of payments, and a limitation of five years within which to make the payments. Furthermore, the court found that the legislative history, as well as case law interpreting the former section 4656, is consistent with the statutory text. The Board’s order denying the County’s petition for reconsideration was annulled, and the matter was remanded with directions to the Board to grant the petition for reconsideration consistent with the appellate court’s findings.

What This Means for You:

No matter how complex the facts of your case are, and no matter what arguments made by the applicants’ attorneys, unless it is overturned by the California Supreme Court, your liability for TTD benefits is 104 weeks in a five-year period of time and no more than that.

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