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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).

New Temporary Total Disability Rates for 2017

The Division of Workers’ Compensation (DWC) has announced that the 2017 minimum and maximum temporary total disability (TTD) rates will increase on January 1, 2017. The minimum TTD rate will increase from $169.26 to $175.88 and the maximum TTD rate will increase from $1,128.43 to $1,172.57 per week.

Labor Code §4453(a) (10) requires the rate for TTD be increased by an amount equal to the percentage increase in the Statewide Average Weekly Wage (SAWW) as compared to the prior year. 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. In the 12 months ending March 31, 2016, the SAWW increased from $1,120.67 to $1,164.51 - an increase of just under 3.912 percent.

Under Labor Code §4659(c) workers with a date of injury on or after January 1, 2003 who are receiving life pensions or permanent total disability benefits are also entitled to have their weekly rate adjusted based on the SAWW.

You can review the first quarter 2015 SAWW figures at the U.S. Department of Labor website, as can the first quarter 2016 SAWW figures.

What This Means for You:

Now is the time to update your TTD charts as January 1, 2017 will be here before you know it. It is recommended that you review your Life Pension or 100% PD files to ensure that they come up for diary before January 1, 2017 to review and apply the SAWW increase.

Darlene M. Ball, Esq.

Standard C&R Forms Clash With Defendant's Expectations & Tips for Creating a Challenge-Proof C&R

An important case regarding the terms of a settlement agreement has just originated from the Los Angeles WCAB. Despite the fact that it has not been designated a “significant panel decision” we believe that the rationale of the Appeals Board’s decision will be followed in subsequent cases.

In the case under discussion the defendant resolved a cumulative trauma claim by C&R and added a relatively standard addendum which included the following language: “All claims of injury to any body part, system or condition not listed in this Compromise and Release are hereby dismissed with prejudice.”

“Not good enough”, said WCJ Schulman when the applicant hired a new lawyer and filed a specific injury claim that occurred within the alleged CT period that had just been resolved and after she had been terminated from her employment. The applicant’s new specific injury claim was allowed to proceed on its merits.

In Orellana v. United Care Services (2015) (ADJ9913367) , the applicant alleged a specific back injury on September 22, 2014. She had previously litigated a CT injury to her back and other body parts through October 1, 2014. The CT claim was settled by a C&R that was approved on December 10, 2014. The C&R agreement included the above quoted addendum as well as a stipulation that the applicant did not sustain any other injuries other than those listed in the C&R.

Defendant argued in the subsequent specific injury case that it had bought its peace as to any prior specific injury claims because the addendum included language that resolved all claims of injury not listed in the C&R. This argument did not persuade the WCJ or the Appeals Board for the following reasons.

Specifically, the WCJ pointed out that the standard Compromise and Release form has an important provision at Paragraph 3 limiting its scope "to settlement of the body parts, conditions, or systems and for the dates of injury set forth in Paragraph No. 1 despite any language to the contrary in this document or any addendum.”

The applicant had not yet litigated the specific injury of September 22, 2014 when the C&R of the CT claim was approved. It is unknown from the Appeals Board’s decision whether her deposition was taken before the matter of the validity of the new specific injury claim came up for trial. At trial she overcame a post-termination defense with unrebutted testimony that she had reported the specific injury to a supervisor and sought medical treatment before her termination.

This WCAB panel decision illustrates the pitfalls of paragraph 3 of the standard Compromise and Release form. Where a conflict exists between the C&R form and an attached addendum, the WCAB can and probably will resolve that conflict in favor of the Applicant.

This was also a missed opportunity for the defendant. Any time you are resolving a CT claim, it is vital that you are aware of the facts of your claim so that any unfiled specific dates of injury which may be known to the defendant on reasonable inquiry are created with Applications and ADJ numbers at the time of settlement. Had this been done, the C&R of the cumulative trauma claim probably would have resolved all issues with this employee.

As to the post-termination aspect of this case the defendant asserted that the specific injury claim was not reported prior to the applicant’s termination. However the defendant did not introduce any evidence to rebut the applicant’s trial testimony that she reported the injury to certain named persons at her job. Specifically, the defendant did not bring to the trial those persons to whom the applicant claimed she reported the specific injury. Whether those rebuttal witnesses would have been believed by the WCJ to support the post-termination defense is a matter of speculation. However the defendant did not give itself that opportunity.

What this Means for You

Retaining counsel who is aware of the intricacies of Compromise and Release settlements is vital to making sure that closed claims stay closed. Your GMK attorney is well versed in these situations and can take specific steps to assure that a settled claim remains resolved.

There may be a silver lining of sorts in the Appeals Board’s decision because the ruling seems to suggest that the parties may agree to strike the form language of Paragraph 3 when the intended agreement is contradicted by the form language.

If you are settling a claim by C&R by which you intend to incorporate all other purportedly unknown or unfiled claims the language of Paragraph 3 of the form C&R must be eliminated with agreement by the applicant.

Any time you are settling a CT claim, review the record carefully for “hidden specific injuries” that may be buried in the applicant’s testimony or in the medical records. Declining to settle only on the existing pleadings and assuring that your settlement encompasses those unfiled specific claims should tip the odds in your favor for preparing settlement documents that stick.

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