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Patrico, Hermanson & Guzman Welcomes Christopher Herritt as Managing Attorney of Santa Ana Office

Santa Ana, CA – December 20, 2016 – Patrico, Hermanson & Guzman are pleased to welcome Christopher Herritt as the Managing Attorney of their Santa Ana, California office.

Christopher has been in the Workers’ Compensation field since passing the bar in 1995, working briefly as an applicant’s attorney, then exclusively as a defense attorney since 1999.  Christopher is a Certified Specialist in Workers’ Compensation.

In addition to handling the defense of Workers’ Compensation claims, Christopher handles discrimination claims under Labor Code section 132a and Serious and Willful Misconduct Petitions.  He has presented to employers, TPAs and trade associations on all aspects of Workers’ Compensation law.

Patrico, Hermanson & Guzman have 9 offices in California.

Patrico, Hermanson & Guzman – Santa Ana Office:  600 W. Santa Ana Blvd. , Suite 700; Santa Ana, California 92701; (714) 560-9806 direct

About Patrico, Hermanson & Guzman, A P.C.: With offices strategically placed throughout California, PHG strives to provide all California employers, third party administrators, municipalities and Workers’ Compensation insurance carriers with aggressive legal defense of Workers’ Compensation claims. Our office locations include Los Angeles, San Diego, Burlingame, Inland Empire, Orange County, Salinas, Sacramento, Oxnard and San Jose. Learn more by visiting www.PHGLaw.com.

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Patrico, Hermanson & Guzman Welcome Roberto A. Gonzalez as Managing Attorney of San Jose Office

By News Release, Patrico, Hermanson & Guzman – May 3, 2016

California Workers’ Compensation Defense Firm Continues to Expand Offices to Serve Clients 

 San Jose, CA – May 3, 2016 – Patrico, Hermanson & Guzman are pleased to welcome Roberto A. Gonzales as the Managing Attorney of their California office located in San Jose, California. 

 Since August 2010, Roberto has represented self-insured employers, insurance companies, and governmental entities in all aspects of workers’ compensation law in the Salinas/Central Coast area and Northern California. 

 In addition to handling the defense of Workers’ Compensation claims, Roberto handles discrimination claims under Labor Code Section 132a and Serious and Willful Misconduct Petitions. He has presented to employers, TPAs and trade associations (California Workers’ Compensation Defense Attorneys’ Association, CAJPA, and PARMA) on various Workers’ Compensation topics, focusing on practical and creative approaches to bringing claims to successful resolutions. Roberto was elected to serve on the California Worker’s Compensation Defense Attorneys’ Association Board of Directors in 2012, and is currently serving on the Executive Committee as President for 2016. 

 The new office is located in downtown San Jose close to the WCAB District offices. 

 “Our firm is focused on building and growing relationships with all of our clients. It is our goal to ensure our clients experience proactive communication and exceptional legal representation,” states Martin Guzman, Supervising Shareholder. “We are pleased to have been able to acquire an attorney like Roberto with prior management experience and proven client development to grow our newest office. Not only will Roberto continue to provide exceptional client services he was known for in the Salinas area and San Francisco Bay Area, but he will further the firm’s specific goal of building and growing relationships in the San Jose metropolitan area.” 

 Patrico, Hermanson & Guzman – San Jose Office:
111 North Market Street, Suite 300; San Jose, California 95113; (408) 650-6911 direct 

 

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Petition for Review/Depublication Denied in Stevens v. Workers’ Compensation Appeals Board

The Supreme Court of California denied review and denied the request for depublication in Stevens v. Workers’ Compensation Appeals Board on February 17, 2016, though Judge Mariano-Florentino Cuéllar believed petition for review should have been granted. This means the opinion of the Court of Appeal (which is similar to the Supreme Court of California’s opinion South Coast Framing, Inc. v. Workers’ Compensation Appeals Board (Clark)) the California Constitution gives the Legislature “plenary power” to pass laws relating to Workers’ Compensation which is not limited by the rest of the state Constitution – basically complete power to act (as long as it doesn’t conflict with the rest of that section of the California Constitution or federal due process rights under the U.S. Constitution, meaning basically the provision has some support).

As reminded by the Court of Appeal in Stevens, the Legislature found the process prior to SB 863 was time-consuming, costly, and did not result in uniform treated based on evidence-based medicine.  In response, the Legislature crafted IMR which is faster and less prone to errors than using the med-legal process.  While still subject to other legal attacks regarding the constitutionality of the IMR process, this is the process we have now, and along with the other reforms of SB 863 has resulted in significant savings for employers and insurers.

For additional information regarding this topic or any legal matters, please contact Martin Guzman at Martin.Guzman@PHGlaw.com or Helen Sagastume at Helen.Sagastume@PHGLaw.com.

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Most Liens Now Dismissed if the Activation Fee is Unpaid

Assuming the Supreme Court of the United States does not grant the petition for certiorari filed by the plaintiffs in Angelotti, another portion of SB863 is will have a final effect.  Beginning November 9, 2015, lien claimants who filed liens prior to January 1, 2013, had the opportunity to pay the lien activation fees owed per Labor Code section 4903.06 before the end of the year.  The DWC is no longer accepting lien activation fees for liens filed before January 1, 2013.

A few reminders:

  • All of the liens are dismissed by operation of law if no lien activation fee was paid before midnight on December 31, 2015.
  • Medical-legal providers and interpreters who filed liens must have paid their activation fee even though now they can file for reimbursement as a cost.
  • All lien claimants must include proof of payment of a lien activation fee
  • Not all liens are dismissed. Only medical treatment expenses were subject to the lien activation fee.  Also, other lien claimants are exempt from the filing fee.  This means liens that are not dismissed include:
    1. Attorney fee liens
    2. EDD liens
    3. Child support liens
    4. Living expenses liens
    5. Burial expenses liens
    6. Liens of a Health care service plan under Health and Safety Code section 1349
    7. Liens of a Group disability insurer under Insurance Code, section 10270.5
    8. Liens of a Self-insured employee welfare benefit plan under Insurance Code section 10121
    9. Liens of a Taft-Hartley health and welfare fund
    10. Liens of a Publicly funded program providing medical benefits on a nonindustrial basis.

If you are dealing with a lien claimant who is a health plan or health insurance provider, they may be exempt from the lien activation fee.  If it is not a medical lien, they were not required to pay the activation fee, and their lien will not be dismissed.

Bottom line 
(assuming the Supreme Court of the United States does not act):

  • All liens filed before January 1, 2013 are dismissed by operation of law if no lien activation fee was paid before midnight on December 31, 2015.

By Brian Hull. For more information about this post, contact a PHG Shareholder or call (831) 998-7348.

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No second guessing the Qualified Medical Evaluator

On October 28, 2015, the California Court of Appeal issued a decision in Batten v. Workers’ Compensation Appeals Board (Long Beach Memorial Hospital), again reminding the workers’ compensation community that statutes which are plainly stated must be followed.

In affirming the WCAB, the Court of Appeal held an injured worker may not obtain a report to rebut a panel QME from anyone other than a primary treating physician .  In the Batten case, an injured worker obtained a medical report from her own qualified medical expert even though there was a panel QME in the case; she did this after the workers’ compensation administrative law judge authorized her to do so.  The injured worker argued it was admissible under Labor Code section 4063 which notes “all comprehensive medical evaluations obtained by any party shall be admissible in any proceeding before the appeals board except as provided in Section 4060, 4061, 4062, 4062.1, or 4062.2.”

The QME found there was not sufficient causation for the claimed psyche injury while the “hired gun” medical expert determined it was industrial.  The Court of Appeal emphasized that medical evaluations to determine compensability or resolve disputes must be obtained pursuant to Labor Code section 4062.2.  The Court of Appeal also emphasizes reports regarding permanent impairment may be admissible from a primary treating physician, while all other privately retained expert reports are not admissible.  The Court of Appeal further agreed with the WCAB that Labor Code section 4605 allowing a “consulting doctor” to provide an opinion is limited to medical treatment issues, not medical-legal issues to try to rebut a panel QME.

This is another case where the Court of Appeal highlights that the language in the statutes or in their decision really is what the legislature or the court meant.  While Labor Code section 3202 provides the law should be construed liberally with the purpose of extending benefits for injured workers, it does not mean the words should be ignored. In this case, a legislative rule expressly declares such evidence to be inadmissible. Consequently, “there is no ambiguity to clarify, there is nothing to construe, there is only the obligation to follow the statutory law.”

For additional information regarding this topic or any legal matters, please contact Martin Guzman at Martin.Guzman@PHGlaw.com or Michael Wang at Michael.Wang@PHGlaw.com

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New Vocational Expert Case Changes Everything by Explaining They Meant What They Said Before

The California Court of Appeal issued an opinion dated September 25, 2015 in Contra Costa County v. Workers’ Comp. Appeals Bd. (Dahl) which deals with a frequently litigated issue – vocational expert evidence.  This case limits broad interpretation by Workers’ Compensation Appeals Board of the prior case of Ogilvie v. Workers’ Compensation Appeals Board (2011) 197 Cal.App.4th 1262 by focusing explicitly on whether an employee is amenable to rehabilitation.  Dahl also suggests such evidence is only appropriate in cases where an employee is totally precluded from the labor market due to his or her injury and complete inability to work specifically due to a work-related injury.

To remind you, as explained in Dahl, the law allows the permanent disability rating schedule to be rebutted by three different methods:

  • A party can show a factual error in the application of a formula or preparation of the schedule
  • An employee shows an injury impairs his or her rehabilitation such that the diminished future earning capacity is greater than reflected in the permanent disability rating schedule (the so-called “LeBoeuf” method).  As a reminder, diminished future earning capacity must be directly attributed to the work-related injury, not nonindustrial factors such as general economic conditions, illiteracy, English-speaking proficiency, or lack of education.
  • An employee can demonstrate the nature or severity of the claimant’s injury is not captured within the sampling of disabled workers used to compute the adjustment factor

In Dahl, both sides submitted competing vocational expert reports.  As this was prior to SB863, the vocational experts testified in a hearing in March 2011.  The WCJ initially ruled the rating per the AME at 59% was the only acceptable level of disability as both vocational experts agreed the employee was not precluded from the Labor Market (i.e., not 100% disabled) and would be a good rehabilitation candidate.  After reconsideration, the Workers’ Compensation Appeals Board returned the matter to the WCJ to develop the record to see if the employee’s rebuttal of the DFEC resulted in disability higher than the scheduled rating (PDRS).  Both experts testified again, with the employee’s expert admitting the employee was a good candidate for rehabilitation but still stating the scheduled rating understated the loss of earning capacity based on “a theoretical group of similarly situated employees.”  Defendant’s expert said the scheduled rating overstated the loss of capacity.

The court in Dahl rejected the idea a vocational expert may use anything other than amenability to rehabilitation for LeBoeuf analysis.  The Court of Appeal specifically chastises the employee’s expert for trying to rebut the schedule by coming up with a “competing empirical methodology” and warping statistics in favor of the employee.

Importantly, in Dahl, the Court of Appeal reminds us that it is a “rare case in which an [employee] or employer c[an] rebut a scheduled rating.”  Also, in dicta, the Court of Appeal noted they are “skeptical . . . an employee may invoke [LeBoeuf] where the inability to rehabilitate results in less than a 100-percent permanent disability.”

Impact

Going forward, this case can optimistically be read as only allowing a challenge to the permanent disability schedule if an employee  can prove a total preclusion, including some factors caused by the work-related injury which make it such that the employee cannot even learn any new job.  Otherwise, the permanent disability schedule will apply or a defendant can prove the diminished future earning capacity is not as significant as noted by the permanent disability rating schedule.   In conjunction with the recent Hallmark Marketing Corp. v. Workers’ Compensation Appeals Board (Gannon) decision, the Court of Appeal returns the focus to limitations due to the individual work-related injury suffered by one employee, keeping in mind the alternative work available to the particular employee (e.g., work from home).

Assuming this opinion stands, this is more in line with what the Legislature intended with SB 899 – controlling unnecessary and skyrocketing costs due to litigious positions by employees, especially a shift of “dueling experts” to vocational experts in lieu of medical evaluators.  This is certainly a positive turn of events for the Workers’ Compensation defense community.

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Hallmark Marketing Corp. v. Workers’ Compensation Appeals Board (Gannon) decision issued by California Court of Appeal

On September 21, 2015, the Court of Appeal issued this unpublished decision regarding the 1997 rating schedule.  In essence, the Court of Appeal made two important findings:

  • A “sheltered workplace” or working primarily from home does not automatically result in a 100% permanent disability rating
  • Once an injured worker proves that he or she can only work from home, the employer has the burden to show the injured worker’s ability to compete in the open labor market.

The first finding makes sense and is a case of the Court of Appeal accepting that we are in the “information age” (as the court puts it).  Eloquently put, the court notes the ability of a person to use a computer and the internet “has rendered obsolete the DEU rater’s view that having to work from home necessarily results in 100% permanent disability.”  (slip opinion at p. 7).

The second finding is more important and potentially something which can be used in other cases.  The Court of Appeal comes to the conclusion that an employer must show job availability if an injured worker is limited to working at home by analogizing to the “odd lot” doctrine.  The odd lot doctrine is, essentially, when an injured worker has work restrictions (temporary partial disability).

At that point, the employer must show there is work available that the injured worker can perform.  If there are only “special” light jobs, and they cannot be obtained, then temporary disability benefits must be paid.  The Court of Appeal calls this the “odder lot” due to the limitation to work only at home.

As for the actual case, the Appeals Board still has to address if the evidence supported a finding of 100%, given its initial erroneous opinion with the “sheltered workplace” meaning a 100% rating automatically.

Applicability to other cases

Here, the idea is the employer can rebut the 100% finding with, presumably, vocational expert reporting.  If the injured worker claims they are 100% disabled (or a medical report or even possibly a vocational report) then an employer’s vocational expert can seek to find some “odd lots” the injured worker can do.  Whether a trial judge will agree it is reasonable, of course, is a different matter.

A vocational report must do two things to rebut the finding:  (1) establish that there are available jobs; and (2) establish the injured worker’s ability to compete for those jobs.  The latter is the more difficult but essential part of the vocational expert opinion.  Medical opinions may delineate restrictions in addition to permanent disability values (if they don’t, make sure to depose the physician to have some restrictions stated, even if minimal, to get you something to work with).  The issue of “variable ability” may be a factor, e.g., an injured worker can work for a restricted amount of time or perform certain tasks for a limited amount of time, which a vocational expert should address as well.

For assistance or additional questions regarding this or any matter, please reach out to any of our Shareholders.

A copy of the opinion is available at http://www.courts.ca.gov/opinions/nonpub/C077512.PDF

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Thomas Finn of Patrico, Hermanson & Guzman, A P.C. Retires

After nearly half a century working in California Workers’ Compensation Defense Industry, PHG law honors Tom’s long time dedication to the industry.

Burlingame, CA; August 31, 2015 – Patrico, Hermanson & Guzman, A P.C. announced today that Thomas Finn, Vice-President and Firm Shareholder, is retiring after more than 46 years dedicated to the service of California employers, insurance companies, TPAs and municipalities in defending workers’ compensation claims.  Tom retires from PHG after managing its Bay Area office for the past five years.

Tom began his workers’ compensation career in 1969 at Aetna Casualty Insurance Company as a claims examiner. He attended law school while working as a Fireman’s Fund examiner.  In 1973, he passed the California Bar Examination and has worked as a defense attorney since, first as a founding partner at Mentz, Finn & McDowell and then with PHG for the past five years. In 1979, Tom was awarded certification as a Legal Specialist in Workers’ Compensation by the State Bar.  He served as President of the California Workers’ Compensation Defense Attorney Association during the term 1991 through 1992 and has worked as a member of the Board of Directors of CWDAA from 1985 to 2011.

“I have truly enjoyed working with our clients, our adjusters, and our exceptional group of attorneys,” said Mr. Finn. “My career in workers’ compensation and my time as a Shareholder have been an honor for me.  I will miss my day to day interactions with the community, but I am looking forward to spending time with my eight children and 14 grandchildren, as well as traveling with my wife Nancy and working on my golf game.”

Michael Wang has been named Tom’s successor to head PHG’s Bay Area office.  Mr. Wang began transitioning into management over the past few years.  “We will all miss Tom.  He has been a great mentor.  He’s taught me well and I am ready to take on the challenges of managing one of PHG’s largest offices.” said Michael Wang.

About Patrico, Hermanson & Guzman, A P.C.: With offices strategically placed throughout California, PHG strives to provide all California employers, third party administrators, municipalities and workers’ compensation insurance carriers with aggressive legal defense of workers’ compensation claims.  Learn more by visiting www.PHGLaw.com.

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Sean Hermanson
Patrico, Hermanson & Guzman, A P.C.
(858) 874.2109
Sean.Hermanson@PHGlaw.com

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Joseph Patrico has been invited to join the Claims and Litigation Management Alliance

San Diego, CA – August 18, 2015 – Patrico, Hermanson & Guzman is pleased to announce that Joseph Patrico, CEO and Managing Shareholder, has been invited to join the prestigious Claims and Litigation Management Alliance (CLM).  The CLM is a nonpartisan alliance comprised of thousands of insurance companies, corporations, Corporate Counsel, Litigation and Risk Managers, claims professionals, and attorneys.  Through education and collaboration the organization’s goals are to create a common interest in the representation by firms of companies, and to promote and further the highest standards of litigation management in pursuit of client defense.  Selected attorneys and law firms are extended membership by invitation only based on nominations from CLM Fellows.

Prior to attending law school, Joe Patrico spent more than four years with Farmers Insurance Group and Republic Indemnity as a workers’ compensation claims examiner.  After law school graduation, Joe practiced plaintiffs’ employment law and general civil litigation. He then returned to the workers’ compensation community, where he focuses on workers’ compensation litigation and running the subrogation unit. Joe also serves as an arbitrator for workers’ compensation matters. A frequent speaker and lecturer, Joe currently serves as the CEO and Managing Shareholder of Patrico, Hermanson & Guzman.

About Patrico, Hermanson & Guzman, A P.C.: With offices strategically placed throughout California, PHG strives to provide all California employers, third party administrators, municipalities and workers’ compensation insurance carriers with aggressive legal defense of workers’ compensation claims.  Learn more by visiting www.PHGLaw.com.

Media Contacts:
Sean Hermanson
Patrico, Hermanson & Guzman, A PC
(858) 874-2109 | Sean.Hermanson@PHGlaw.com

Susan Wisbey-Smith,
Communications Manager Claims and Litigation Management Alliance
(847) 317-9103 | susan.wisbey-smith@theclm.org

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Patrico, Hermanson & Guzman, A P.C. Names Erik Wachowiak as Newest Shareholder

California Workers’ Compensation Defense Firm Continues to Expand Leadership Team

San Diego, CA – May 19, 2015: Patrico, Hermanson & Guzman, A P.C. announced today Erik Wachowiak has become its newest Shareholder. Erik is a Certified Workers’ Compensation Law Specialist with extensive experience in defending claims filed against California employers.  Erik has been with the firm for the past 12 years as a Senior Attorney. His entire legal career has been focused on Workers’ Compensation Law and its most complex sub-specialties to include Labor Code 132a Discrimination Allegations, Serious & Willful Misconduct Allegations and Subrogation matters.

Erik joins PHG’s management team in the firm’s San Diego Office.  “This is a very exciting time for our firm as it continues to grow and prosper.  I look forward to my new role and its new challenges, opportunities and responsibilities,” said Mr. Wachowiak.

“Erik is an outstanding attorney by any standard,” said Joseph Patrico, CEO and Managing Shareholder. “His exceptional legal skills, record of achievement, leadership abilities and commitment to client service all set him apart. We are very proud to welcome him to the firm’s managing ranks.”

About Patrico, Hermanson & Guzman, A P.C.: With offices strategically placed throughout California, PHG strives to provide all California employers, third party administrators, municipalities and workers’ compensation insurance carriers with aggressive legal defense of workers’ compensation claims. Headquartered in San Diego, PHG has additional offices in Riverside, Santa Ana, Burlingame, Salinas, Sacramento and Los Angeles. Learn more by visiting www.PHGLaw.com.

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Sean Hermanson
Patrico, Hermanson & Guzman, A P.C.
(858) 874.2109
Sean.Hermanson@PHGlaw.com