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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.

Interactive Process

Both the ADA and California FEHA require an employer to engage in the interactive process with the employee to identify and implement appropriate reasonable accommodations when an employer becomes aware of the need for accommodation. The need for an accommodation arises anytime an employee who is a qualified individual with a disability is unable to perform the essential functions of the job without an accommodation.

In the case of Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001), the 9th Circuit, interpreting the ADA and FEHA, found that the duty to accommodate is a “continuing” one that is “not exhausted by one effort” (quoting McAlindin v. County of San Diego, 192 F. 3d 1226, 1237 (9th Cir., 2000). The 9th Circuit also referred to the EEOC Enforcement Guidance on Reasonable Accommodation that an employer must consider “each request for reasonable accommodation” and must consider alternatives if an accommodation is ineffective. In the Humphrey case the employee had requested a particular accommodation (when the first accommodation was not working) and the employer, rather than exploring other possible accommodations, terminated the employee as the suggested accommodation violated a separate company policy.

Based on this case, the EEOC Enforcement Guidance and the FEHA regulations, the accepted guidance for clients is to ensure that the interactive process is an ongoing effort to attempt to find one or more reasonable accommodations. This means that each time either the employee requests a new accommodation, the employer otherwise becomes aware of the need for a new or different accommodation, or the underlying reason for the accommodation (changes in restrictions) changes, the employer (and employee) must engage in the interactive process.

From an employment law perspective clients are advised to engage in the process and make determinations based on the most restrictive information from any doctor. That way the employer does not have the problem of having required an employee to work if a health care provider either states that the employee should not be working at all or if the employee may only work with certain restrictions.

What this means for you:

Generally, with regard to Workers’ Compensation claims, the client is advised to engage in the interactive process when the employee is first given a clearance (usually from the PTP) to return to work with restrictions. The process needs to be repeated if: the restrictions change; an accommodation becomes ineffective; or when the employee has permanent restrictions. So, in most Workers’ Compensation cases there will be at least two interactive process reviews – when there are temporary restrictions (if any) and when there are permanent restrictions (if any).

New Faces at GMK

GMK is pleased to announce new Associates to the firm:

Los Angeles Office

ARIN SCAPA

Arin R. Scapa received her Bachelor of Arts degree from the University of California, Irvine in 2004 and her Juris Doctor degree from the University of La Verne College of Law in 2010.

Prior to joining Goldman, Magdalin & Krikes, LLP, Ms. Scapa worked as a Staff Attorney for The Hartford Financial Services Group, Inc. (The Hartford). It was with The Hartford that Ms. Scapa began practicing insurance defense in the field of workers’ compensation, after having previously practiced criminal law. Ms. Scapa worked for the United States Attorney’s Office for the Central District of California in the Criminal Division’s Major Frauds Section. There, Ms. Scapa worked exclusively on complex fraud cases, most of which had losses exceeding several million dollars; In addition, Ms. Scapa was a law clerk for the Los Angeles County District Attorney’s Office, a paralegal for a private criminal defense firm, and an intern for the Orange County Public Defender’s Office.

Ms. Scapa is currently serving on the Board of Governors of the Women Lawyers Association of Los Angeles.

Ms. Scapa is a member of the State Bar of California. She is admitted to practice before all California courts, as well as before the United States District Court for the Central District of California.

Bay Area Office

STEPHEN VACCARO

Stephen A. Vaccaro received his Bachelor of Science degree in Business Administration from California State University at Long Beach in 2002. He subsequently began a career in workers' compensation insurance investigations in the San Francisco Bay Area, which ultimately led him to pursue a legal education in 2009.

After receiving his Juris Doctor degree from Concord Law School in 2014, Mr. Vaccaro was admitted to practice law in the State of California. He now practices workers' compensation defense law with GMK’s Bay Area office.

Sacramento Office

JULI MILES

Juli Miles received her Bachelor of Arts Degree from California State University, Sacramento in 1983 and Juris Doctorate from Lincoln Law School in 1991.

Ms. Miles started her career in criminal law and civil litigation prior to practicing workers’ compensation defense. Before joining Goldman, Magdalin and Krikes, LLP, Ms. Miles worked in Workers’ Compensation Law for 17 years with one of the largest Workers’ Compensation defense firms in the United States.

Ms. Miles practices all aspects of workers’ compensation defense, including 132(a) discrimination, Serious and Willful Misconduct, coverage, public entity and appellate issues. Ms. Miles has argued a case before the California Court of Appeals.

Welcome to GMK- Arin, Stephen and Juli.

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