BRIEF LEGAL UPDATE

APPORTIONMENT TO ASYMPTOMATIC CONDITION ALLOWED BY COURT OF APPEAL

Aaron Lindh was a police officer for the City of Petaluma who incurred a left eye injury during a training exercise with police dogs in 2015. The PQME opined that but for a pre-existing asymptomatic vascular condition, the 2015 incident would not have caused lost of eyesight and therefore apportioned 85% to the non-industrial disease factor and remaining 15% to the 2015 industrial incident. At trial, the WCJ disallowed the apportionment as allegedly not being based upon substantial evidence, with that decision then affirmed by the WCAB.

Upon further appeal by the defense, the Court of Appeal reversed the Board and held that PD apportionment was required under Labor Code 4663 based upon substantial evidence that the applicant's disability was in part the result of an actual non-industrial cause (vascular disease) as discussed by the PQME, and was not based upon some speculative risk factor. City of Petaluma v. WCAB (Lindh) (2018) Cal. App. LEXIS 1137.

[ COMMENT: Too often Judges disallow apportionment to an actual contributing factor just because the employee was allegedly asymptomatic, even though the law clearly states in LC 4663 and 4664 that an employer is only responsible to the extent that disability is actually caused by injuries incurred at their workplace.]

WORK COMP IN THE NEWS

MILEAGE REIMBURSEMENT RATE INCREASES FOR 2019

The medical mileage reimbursement rate will increase from $0.545 in 2018 to $0.58 for travel done on or after 1/1/2019. This is consistent with the 2019 business mileage rate as recently announced by the IRS.

PQME ALLOWED TO REVIEW DEFENSE VOC. REHAB. REPORTS

In Saydiel Ocana v. Selah Gourmet Food (2018) 2018 Cal.Wrk.Comp. P.D. LEXIS 440, applicant objected to the non-medical defense vocational rehabilitation reports of Ray Largo and Kelly Winn being submitted to the orthopedic and psych PQMEs. The issue was set for a hearing, where the WCJ disallowed the reports. However on appeal, the WCAB stated the reports should be provided to the PQMEs because there is a "...nexus between medical and vocational evidence, and the reporting physicians should be able to take anything into consideration that affects permanent disability". The defense was thus allowed to send the reports to the two PQMEs.

[COMMENT: While this panel-only decided case could open the doors to vocational reports being submitted to PQMEs, remember those reports are still not medical reports and therefore are potentially vulnerable to a timely objection by the opposing party per A.D. Regulation 35, which could be appropriate if the quality of the vocational report is suspect or the opposing party is awaiting a rebuttal report.]

PREMATURE PHOTOCOPY COSTS WERE DISALLOWED

In Celiflora Lopez v. Harbor View Farms, LLC; Zenith Insurance Company (2018) 2018 Cal. Wrk. Comp. P.D. 507 the applicant's attorney filed an application and concurrently issued subpoenas for records. The defense objected to the photocopy costs, noting that while Labor Code 4620 allows for medical-legal costs to prove a contested claim, in this case the claim had not been denied and therefore technically was not "contested" as required by statute.

The WCAB held the applicant's subpoenas for records were premature and not subject to payment by the employer because the claim was not technically "contested" (i.e. no denial notice, no failure to provide benefits within a reasonable time period, etc.).

[COMMENT: Not unusual for applicant attorneys to issue subpoenas concurrent with filing an application, even before the employer is actually aware of a filing existing. Defense needs to be vigilant in objecting to such practices.]

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HEW&S NEWS

The 26th Annual DWC Educational Conference is coming next month to Los Angeles (2/11/2019) and then Oakland (2/28/2019). HEWS will once again be a major sponsor, with our own SBR/SDO partner Angela M. Currie representing the law firm at the Conference in Los Angeles.

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