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GMK Annual Southern California Seminar

GMK is pleased to present our Annual Seminar on October 28, 2016 and November 4, 2016. This year, instead of having a single seminar in Southern California, we will present our same training 2 times in 2 new locations.

GMK Annual Southern California Seminar

Friday, October 28th, 2016
Claremont - Double Tree Hilton
and
Friday, November 4th, 2016
San Diego - Mission Valley Marriott Courtyard

Do you know Workers’ Compensation law?

Agenda


7:15-8:00 Check-in and Continental Breakfast
8:00-8:15 Welcome
8:15-9:00 What Would You Do? An Interactive Discussion
9:00-9:15 Break
9:15-10:00 Compensability, Statutory Defenses and Good Faith Personnel Actions
10:00-10:15 Break
10:15-11:00 New Case Law Update
11:00-11:15 Break
11:15-12:00 Updating you on UR and IMR
12:00-12:10 Closing

You will not want to miss this year’s GMK Seminar! Space is limited, so RSVP your reservation today to ddon@gmklaw.com.

Settlement of SJDB Vouchers with a ‘Beltran’ C&R

In Beltran vs. Structural Steel Fabricators, Defendant State Fund sought reconsideration of the Order Approving Compromise and Release where the WCJ added language indicating that the parties ‘may not settle or commute the Supplemental Job Displacement Voucher (SJDV) pursuant to Labor Code Section 4658.7 (g) and CCR10133.31 (h)’. The Defendant argued that the WCJ exceeded her authority in modifying the terms of the C&R and that, in a denied claim (post 1/1/13 date of injury) where a good faith dispute exists, the parties are permitted to settle the voucher.

Background: Prior to the 2004 reform, it was common for the parties to resolve vocational rehabilitation benefits pursuant to the En Banc decision in Thomas v. Sports Chalet, subject to the requirement that a trier of fact had to thoroughly review the record to determine whether “a serious and good faith issue exists to justify such a release”. The Thomas decision was, in part, a byproduct of the need for judicial economy from a Code section that prohibited the settlement of vocational rehab benefits (Section 5100.6).

Similarly, since the 2013 reform, Workers’ Compensation Judges across the California have been told that they could not approve a settlement releasing the SJDB voucher for post 1/1/2013 dates of injury. Any Thomas-type language in Compromise and Releases was ignored by the Judges and settlement of the voucher has been prohibited.

Beltran holding: the applicant filed a post 1/1/13 continuous trauma claim that was denied based on post termination. The WCJ parceled out the voucher from the Compromise-and-Release settlement. On review, the WCAB Panel analyzed the rationale behind the Thomas decision and analogized the voucher to the settlement of the vocational rehabilitation benefit. The Panel recognized that not allowing the settlement of vouchers would effectively ‘do away with settlements’ despite the existence of good faith disputes that could totally bar recovery. As such, the Board held that in a disputed case, where the trier of fact makes an express finding that a serious and good faith issue exists to justify a release, a Compromise and Release agreement may be approved by the Board, which will relieve the employer from liability for the SJDB voucher.

What does this mean to you?

You can negotiate the release of the SJDB voucher in all cases that have serious and good faith issues as to compensability. Since an express finding is required under Beltran, make an offer of proof in your Compromise and Release document by pointing out the nature of the dispute and the evidence supporting that contention.

GMK Seminar - Save The Date

This year, instead of having a single seminar in Southern California, we will present our same training seminar 3 times in 3 new locations. To help GMK plan for these Seminars and to make sure we have enough space for everyone who wants to attend every seminar, we are asking for your help. Please review the dates below and let us know which one of the seminars you would like to attend:

Fresno, California
Friday, October 14th

Fresno Hampton Inn and Suites
8:00-12:15

Claremont, California
Friday, October 28th

Claremont DoubleTree by Hilton
8:00-12:15

San Diego, California
Friday, November 4th

Courtyard Marriott San Diego Mission Valley
8:00-12:15

We appreciate your support, and thank you in advance for helping us plan and prepare for another great year of GMK Seminars. Please use this GMK Alert as a SAVE THE DATE. Respond with your preferred date and location to ddon@gmklaw.com, or with any questions. Additional information will be sent as the Seminar dates come nearer.

If you know anyone who you think would be interested in this seminar, please forward this email to them. As always, our seminars are free and are open to all of our past, present and future business partners in the Worker’s Compensation community.

“Late” IMR determinations do not permit applicants to obtain treatment denied by UR

The question of whether the 30 day time period for completion of Independent Medical Review (IMR) is mandatory or non-compulsory (i.e., directory) pursuant to Labor Code §4610.6 (d) has been decided by the Second District Court of Appeal in California Highway Patrol v WCAB (Margaris). This issue has prompted a split panel of commissioners at the WCAB level and reflective of that split, two Appellate District courts have been charged with resolving this question.

In Margaris, State Compensation Insurance Fund sought review of a decision by the WCAB regarding the necessity of proposed medical treatment requested by the applicant Dorothy Margaris. A UR denial of a request for authorization for epidural injections was appealed through the IMR process and Maximus upheld the UR denial 43 days after receipt of the applicant’s request for review and receipt of supporting documentation. The panel of WCAB commissioners had reversed the trial judge and decided that the late IMR decision permitted the applicant to obtain the epidural injection. State Compensation Insurance Fund then appealed the WCAB determination to the Court of Appeal.

The Second District Court has decided in its Margaris holding that the 30 day time limit in §4610.6 (d) is merely “directory” and not mandatory and therefore “untimely” IMR determinations are valid and binding upon the parties as a final determination. The important and practical effect of this decision is that doctors and not judges will continue to make medical necessity determinations reflective of the intent behind UR/IMR.

However the case of Southard v. Hallmark Greeting Cards is still pending before the Third District Court of Appeal on this same issue. It remains to be seen whether the Third District will issue a finding that is consistent with or contradicts the Second District’s interpretation of the statute. A split decision at the appellate level will then have to be decided by the California Supreme Court. But for now, the workers’ compensation community has a published decision in Margaris that gives some interim direction on this issue.

What this means for you:

Please keep in mind that this decision does not alter the mandatory requirement that UR decisions be made within the time limits contained in Labor Code §4610 (g) (1), et. al. [that is, 5 working days and no greater than 14 days from receipt of the information reasonably necessary to make the determination]. Accordingly it is still required that you submit all necessary documentation to UR in a timely fashion. Additionally, you should also submit all required documentation as needed and requested by Maximus. The decision in Margaris does not alter your responsibilities in this regard.

Goldman Magdalin & Krikes attorneys are available to answer any questions that you might have regarding this very important decision.

Robert Choi, Esq.
Paul Magdalin, Esq.

Paid Sick Leave - Los Angeles City Ordinance Increase in Minimum Wage - City of Los Angeles & LA County Effective 7/1/16

A new Ordinance has been passed by the City of Los Angeles requiring all employers (regardless of size) to provide employees working in the City of Los Angeles with six (6) days (or 48 hours) of paid sick leave rather than the three (3) days (or 24 hours) required by state law.

As set forth in the state law, the Paid Sick Leave can either be given to the employees up front, or on an accrual basis, so the 6 days (or 48 hours) can be provided at the beginning of each year (or the beginning of employment) or can be subject to accrual at the rate of one (1) hour for every thirty (30) worked.

The terms under which the paid sick leave may be used are the same as the state law except:

1) if the accrual method is used, employees must be allowed to accrue up to a cap of 72 hours (rather than the current 48 hours under state law);

2) The sick leave can be used not only for the family members noted in the Labor Code but for the illness of “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship”; and

3) the employer may require “reasonable documentation” when paid sick leave is to be used. [The employer should only ask for this “documentation” when the sick leave exceeds the three (3) days or 24 hours allowed by state law.

Employers in the City of Los Angeles need to determine whether they want to continue to give paid sick leave up front (now 6 days) or want the employees to accrue paid sick leave at the rate of one hour for every 30 worked. Employers may want to consider modifying their vacation or PTO policies since they will now be required to provide additional paid sick leave. However, the City Ordinance does state that “If an Employer has a paid leave or paid time off policy or provides payment for compensated time off, that is equal to or no less than 48 hours, no additional time is required”. So it appears that as long as you have Paid Sick Leave and/or PTO of 48 hours or more you will meet the requirements of the Ordinance.

Please also note that the minimum wage for the City of Los Angeles AND Los Angeles County increases to $10.50 per hour for employers with 26 or more employees.

Both the minimum wage increase and the change to the paid sick leave law are effective July 1st, 2016.

What This Means for You:

If you employ 26 or more employees and are located in the City or County of Los Angeles you must pay employees at least $10.50 per hour as of July 1, 2016 pursuant to the minimum wage increase in those areas. Also, if you operate in the City of Los Angeles and do not currently provide at least six (6) Paid Sick Leave days (or PTO) to employees you must do so immediately as the new City Ordinance goes into effect on July 1, 2016.

If you would like assistance with implementing these new requirements, please contact GMK attorneys Jeffrey Soll (through June 28th) or Jeanne Flaherty (after June 28th).

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