WCAB SAYS INJURED WORKER HAS NO LIABILITY FOR NON MPN TREATMENT WELL, ALMOST

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1 May 2013 Vol. I Issue 5 CONGRATULATIONS TO THE RECIPIENTS OF THE 2013 STEVEN JIMENEZ SPECIAL RECOGNITION AWARDS WCAB SAYS INJURED WORKER HAS NO LIABILITY FOR NON MPN TREATMENT WELL, ALMOST By: Ani Baghdassarian, Esq. The Executive Committee of the Workers Compensation Section of the California State Bar has announced this year s honorees! The ceremony will take place on 10/11/13 in San Jose. We wish to recognize the following recipients: Lifetime Achievement: The Honorable George Mason Judge of the Year: The Honorable Ralph Zamudio Defense Attorney of the Year: Raymond F. Correio, Esq. Applicant Attorney of the Year: Sue Borg, Esq. Young Lawyer of the Year: Zachary Frost, Esq. We wish to especially acknowledge our very own, Raymond F. Correio, Esq., the 2013 Defense Attorney of the Year. Ray s robust spirit and enthusiasm are unparalleled. His gracious willingness to help his colleagues is admirable. His countless contributions through the years, both as a Workers Compensation Administrative Law Judge and attorney, are immeasurable. This is an unexpected and unanticipated honor especially given the stature and accomplishments of all the other recipients, said Ray. I try to practice everyday with passion, intensity, and a dash of necessary inspiration. On 05/13/13, the WCAB issued a panel decision in Mendez- Correa v. Zenith Insurance Company concluding that an injured worker (IW) is not liable for medical treatment outside of a properly noticed Medical Provider Network (MPN) because he did not intend to self- procure the treatment at his own expense. In Mendez- Correa, the IW suffered an admitted injury in northern California on 07/31/08. Zenith provided treatment through its MPN. After a few months, the primary treating physician (PTP) declared the IW Maximum Medical Improvement (MMI). The IW then obtained a Panel QME who also found the IW MMI. Subsequently, the IW moved to southern California, hired an attorney, and designated non MPN Dr. Ahmed as his PTP. Dr. Ahmed referred the IW to numerous non- MPN providers. The Workers Compensation Administrative Law Judge (WCJ) decided that the IW self- procured medical treatment outside of Zenith s MPN at his own expense under Labor Code 4605, and that Zenith was not liable for the IW s self- procured non MPN medical treatment liens. The IW filed a Petition for Reconsideration arguing that the WCJ s decision lacked adequate reasoning, that the finding of self- procured treatment at the IW s expense outside the MPN was not supported by the record, and that Zenith failed to prove it had a valid MPN and that it complied with the notice requirements. The WCAB granted the Petition. The WCAB agreed with the WCJ s opinion that the IW was obligated to treat within Zenith s MPN. However, the WCAB opined that the WCJ misapplied 4605 when he concluded that any and all medical treatment obtained outside of a properly noticed MPN is self- procured by an IW at his own expense. Under the en banc Knight and Babbitt decisions, an employer is not liable for self- procured medical treatment outside of an MPN if the employer did not neglect or refuse to provide treatment through its MPN. But under 4605, when treatment is rendered to an IW on an admitted injury and the provider submits billing to the insurance or files a lien, the WCAB retains exclusive jurisdiction over any issues of payment (meaning, a provider cannot file a civil suit to recover fees for its services; the Appeals Board is their only avenue). Continued on page 2

2 IW has no liability, from page 1 Under Johnson and Bell, an IW is only personally liable for the cost of medical treatment that he intends to self- procure at his own expense per This treatment is in addition to or independent from the treatment for which his employer is liable. Such treatment is not a matter within the jurisdiction of the Appeals Board and a defendant cannot be held liable for the services. Here, the WCAB found no evidence that the IW intended to self- procure medical treatment at his own expense and that liability for the treatment falls within the WCAB s jurisdiction. Therefore, the WCAB affirmed the WCJ s decision, but rescinded the finding that the IW self- procured treatment outside of the MPN at his own expense as per Though the record shows the IW obtained treatment outside the MPN, it did not establish that the IW intended to self- procure the treatment at his own expense. It appears as though this case shields IWs from personal financial liability for unintended treatment outside the MPN. At the same time, this case appears to be neutral to defendants in that it does not create any additional liability for non MPN treatment. NOTICE TO READERS: This material is not intended to constitute legal advice or to create an attorney- client relationship. The distribution of this information is for educational purpose only and is not provided as a consideration for future business and is not intended to solicit new business. This information is not intended to apply to any specific case and each reader is cautioned to seek legal counsel before application of the information contained in this newsletter. AB 1309: A GAME CHANGER IN CALIFORNIA WORKERS COMPENSATION FOR PROFESSIONAL ATHLETES By: Shepard A. Jacobson, Esq. California workers compensation has caught national attention through the filing of cumulative trauma claims by non- California professional athletes against non- California teams. This certainly is not breaking news to the sports legal team of attorneys at Pearlman, Borska & Wax. The existing law is, and has been, that if a professional athlete steps onto a field in California, the WCAB has jurisdiction over that cumulative trauma claim. We have been winning legal battles convincing the WCAB that jurisdiction should not be exercised or applied when the professional athlete s employment connection to California is not significant and where the players contracts contain a valid choice of forum clause. Now there is proposed legislation, Assembly Bill (AB) 1309, that if passed, will allow the WCAB to have jurisdiction over those cumulative trauma claims filed by professional athletes only in cases where there is, or has been, regular employment in California. Labor Code The Current Law Labor Code establishes jurisdiction over claims in which the employee who is (1) regularly employed in California or (2) those employees that are hired outside of this state and temporarily employed within this state for the employer, if the employer provides workers compensation coverage for the employee s employment within California subject to specific requirements. Labor Code (b) states California will not have jurisdiction over a claim filed by an employee injured in California, even if that injury is part of a cumulative trauma if four requirements are met. If all mandatory requirements of (b) have been met, then the WCAB will not have jurisdiction over that cumulative trauma claim. An Exception for Professional Athlete Claims AB 1309, if passed, will exempt professional athletes that are temporarily employed in California from coming under the WCAB s jurisdiction for cumulative trauma claims unless specific factual requirements are met. The bill would amend which otherwise extends jurisdiction on claims that arise due to causation of injurious exposure in California, regardless of the extent of the California employment connection, the actual extent of the injurious exposure specifically from employment in California, and whether or not the employer is based in the state. AB 1309 passed the State Assembly on 05/02/2013. It is now in the Senate and has been assigned to a committee for further action. It remains to be seen if the bill passes the Senate. An Incentive to Hire The first part of AB 1309, as presently written, would prohibit cumulative trauma claims from Continued on page 3 2

3 AB 1309, from page 2 being filed by professional athletes who were not employed by a California- based team for a total of 90 days in California within the last 365 days from their last date of employment within California. This essentially defines those athletes who were temporarily employed in California (sporadic games played in California while employed by a non- California team). Furthermore, AB 1309 would bar those professional athletes who only participated in training camp and preseason activities in California, but failed to make the regular season roster, from filing a California cumulative trauma claim. Opponents argue that AB 1309 would unfairly prevent an athlete s right to file a cumulative trauma claim sustained during that training camp and preseason. However, opponents fail to realize that AB 1309 promotes the hiring of professional athletes, who may have pre- existing disability, who can still perform the essential functions of the job. Free agency has created the process by which professional athletes, especially veteran players, become employed for multiple teams throughout a career. Both California and non- California teams would be more likely to take a chance on hiring an athlete, even veteran athletes near the end of a lengthy career, who may have disability, despite the expectation of temporary or short term employment in California. AB 1309 removes the fear from a non- California team that hiring a professional athlete will result in being financially responsible through the California workers compensation system for a professional athlete s permanent disability and lifetime medical Continued on page 4 M L Q R B S A N W U A C J P S D M W A O P P O W P E O S M T J R H C O N R R P C Y N H X R T E A E O K A E A G J C T F A R E F O E N L E T I I U U Y I L L R R B L S N M P N R X G N N P J O A V G T D E J R I F K O I H T P O D A R N D E B U R C T E B R O W S E U D N G E Y E L V X H K I F J G C T X F J R U I K M P X B S U D T I I D B M C C O N S T R U C T I V E E T A G O R B A J M S X W O H J M Q T Z A H L F E P A C Z N G H O V F D E T T I M M G X V ABROGATE ADOPT APPELLATE BOARD BROWSE CONCURRENT CONSTRUCTION CONSTRUCTIVE DEMEANOR MULTIPLE RECON REHAB SPRAIN STRAIN TESTIFY WORKER 3

4 AB 1309, from page 3 care based on an entire career s worth of cumulative trauma, simply because that employment anticipates a game scheduled in California. Furthermore, AB 1309 removes the fear from a California- based team that hiring a veteran player coming from a non- California team, who might have a pre- existing disability, will result in paying the ultimate price in workers compensation liability due to the athlete s failed attempt during training camp and the preseason to make the team and extend his professional athletic career. Jurisdiction over Long- Term California Athletes The original version of AB 1309 precluded a workers compensation claim in California if the athlete played on another professional team in another state, regardless of how long he played in California if the applicant did not meet the 90- day requirement within the last year of his career. AB 1309 has been amended to allow professional athletes who played 80% of their career or eight years on a California team to file a claim in California. This establishes California jurisdiction and an athlete s right to file a claim as a result of his injurious exposure when moving to a non- California team despite the fact the athlete spent a majority of the career on a California team. Therefore, a long- term employee of a California team, and most likely a California resident, will still retain the right to file a workers compensation claim for cumulative trauma in the state in which he played the great majority of his career, and in most cases, the state of residency. The Statute of Limitations for Professional Athletes Cumulative Trauma Claims Our present Labor Code has fairly broad and flexible time requirements for filing claims. Current case law makes it difficult for defendants to prove the elements of a Statute of Limitations defense. Employers are improving their own internal procedures in providing timely notification of rights to workers compensation. Under AB 1309, the Application for Adjudication of Claim must be filed within a year of an athlete's final day of injurious exposure as a professional athlete or a physician s diagnosis of a disabling condition, whichever is later. Resolving the Conflict between Labor Code Liability and Labor Code 4664 Apportionment of Disability Labor Code applies to injuries within the jurisdiction of California. In professional athlete claims, the application of can produce unfair results. Under the present law, one team may be liable for a professional athlete s entire career s worth of permanent disability and future medical care from cumulative trauma based on temporary or sporadic Outside the office... Contributing attorney Shepard Jacobson with his family at Dodger Stadium. The existing law is, and has been, that if a professional athlete steps onto a field in California, the WCAB has jurisdiction over that cumulative trauma claim. employment (even one game) in California during that employment, despite the athlete then moving on to play for many years with other teams and outside of California. AB 1309 removes this injustice. AB 1309 is consistent with apportionment under 4664, which states, The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. Both the non- California team and the California based team, in which 90 days or more of employment were not spent in California, will not be financially responsible for permanent disability and future medical care not directly caused by that specific employment. Fair Play for Both Athletes and Employers We at Pearlman, Borska & Wax have been making legal arguments for years that while the WCAB may have jurisdiction over a professional athlete s claim filed in California, the WCAB should not apply or exercise this jurisdiction Continued on page 6 4

5 THE DCA WHAT S IN A NAME? WE ALL CALL IT THE DCA. BUT WHAT, EXACTLY, ARE WE REFERRING TO? By: Charles B. Ressler, Esq. California does not have an official judicial body called The District Courts of Appeal and certainly not one called The DCA. But in the California Workers Compensation system, we are accustomed to calling our appellate body, simply, The DCA. Rest assured, the term The DCA does not appear from nowhere. Prior to 1966 there was, indeed, a judicial body in California called the District Courts of Appeal. It is from this period that the term The DCA became common parlance in our community to reference our appeals of a legal issue beyond Reconsideration. From: California Courts website A brief history of The Court of Appeal of the State of California The original California Constitution, adopted in November 1849, offered only one appellate court for the entire state, the Supreme Court. As California s population grew, it became apparent that additional justices were needed. Consequently, in 1879 the original Supreme Court was enlarged to seven justices from its original three. The Court was divided into two three- justice departments simply called Department One and Department Two, with a single presiding justice. Additional help was needed to hear cases as California s population skyrocketed. In 1889 the California Legislature allowed the Supreme Court to create a five- member panel of commissioners to help alleviate the backlog of cases that was growing at an alarming pace. This measure proved to be only a temporary fix. By 1903, serious help was again necessary. An amendment to California s Constitution was proposed to create the District Courts of Appeal. On November 8, 1904 the citizens of California voted to authorize the amendment, thus creating what is sometimes called The DCA. Originally, there were only three appellate districts: the First District located in San Francisco, the Second District located in Los Angeles, and the Third District located in Sacramento. Eventually, the system grew to our current six districts, which also include: the Fourth District established in 1929 and located in San Diego, the Fifth District established in 1961 and located in Fresno and the Sixth District established in 1884 and located in San Jose. The map of California, above, outlines the boundaries of the six districts. California s Constitution was again modified in 1966 to eliminate the word District from the appellate court system creating The Court of Appeal of the State of California. So, the next time you are tempted to say The DCA to reference your Los Angeles case going to appeal beyond Reconsideration pause, and consider its full moniker: The Court of Appeal of the State of California for the Second Appellate District. That is quite a mouthful, but The DCA will still work just fine in our informal conversations. 5

6 AB 1309, from page 4 when the applicant s connection to California is so tenuous that a finding of liability of a professional athlete s permanent disability and future medical care under the California workers compensation system does not serve the intended purpose of the Labor Code and has blatantly unfair results. There are many claims that have, and are still being filed, in which a professional athlete from a non- California team plays a single game in California, then continues to have a lengthy career outside of California before retirement, but then seeks workers compensation benefits against the previously employed team for that one California game, for a career- long cumulative trauma. Since AB 1309 limits jurisdiction to professional athletes cumulative trauma claims to only where there is regular employment in California, it removes the injustice of imposing liability on a team in which the great majority of the athlete s disability was caused by other employment, consequently strengthening the principles of 4664 apportionment. AB 1309 supports the position that a professional athlete s claim should be under the jurisdiction of the state where the athlete was regularly employed. And lastly, AB 1309 will promote the hiring of a professional athlete by California and non- California teams without fear of liability for that athlete s entire career s worth of industrially caused disability and lifetime medical care, simply because there is temporary employment within California. UPDATE ON LIENS: EN BANC MARTINEZ DECISION CLARIFIES PETITIONS FOR COSTS By: Ani Baghdassarian, Esq. On 05/07/13, the WCAB issued an en banc decision in Martinez v. Ana Terrazas; Allstate Insurance Company holding: (1) Medical- legal expense claims may not be filed as a Petition for Costs under Labor Code 5811 (regardless of when the lien was/is filed, date of service, or nature of the expenses). (2) Medical- legal lien claimants who withdrew their lien and filed Petitions for Costs prior to this decision may still pursue their lien if they comply with the activation fee requirement of Labor Code and if its lien was not dismissed. After the enactment of SB 863, a lien claimant of record, New Age Imaging (NAI), filed a Petition for Costs under 5811 for medical- legal copy service expenses. The Workers Compensation Administrative Law Judge (WCJ) denied the Petition because the lien was subject to the activation fee per (a). NAI then withdrew its lien (in a presumed effort to avoid paying the activation fee), and again filed a Petition for Costs. The WCJ again denied the Petition and stated the lien was subject to the activation fee and that withdrawal of the lien does not abrogate the cost mandate under (a) The WCAB granted NAI s Petition for Reconsideration and affirmed the WCJ s denial of NAI s Petition for Costs, but stated the WCJ should have dismissed, not denied the petition, as a lien claimant cannot circumvent the activation fee requirement. The WCAB allowed NAI to reinstate its lien since it was never dismissed. Though 5811 allows for costs and expenses, under Elliot and the en banc Costa II decision, there are limitations as to what may be awarded because section 5811 does not include costs and expenses, which are awarded under other sections. Since medical- legal expenses are already governed by Labor Code 4620, , , , and , said expenses cannot be pursued by filing a petition for costs. To do so otherwise would be an abuse of discretion and counter to the Legislature s intent. Here, the WCAB found NAI s services were medical- legal costs and thus could not recover under The WCAB further opined that if a lien claimant pursues its lien, it cannot avoid the activation fee requirement. Here, the WCAB essentially gave NAI a break by allowing reinstatement of its lien because of the uncertain interpretation of SB 863 at the time NAI withdrew its lien. As a side note and of particular importance, the WCAB commented that interpreters can file a petition for costs under 5811, but only for services at depositions and WCAB hearings, not medical treatment appointments and/or medical- legal exams. In the April issue of The PBWire, we published part one of a two- part article on the Writ of Review process. Part two has been delayed but will be published in a future issue. 6