Kelly Snow filed an Application for Adjudication of Claim against her employer, Health Net, alleging that she sustained an industrial injury to her upper extremities, wrist, shoulders and back. She later filed an amended Application, alleging additional injury to her psyche. She apparently disclosed in her deposition that she had been treated by Ms. Bradley, a Licensed Clinical Social Worker in the past.

Defendant attempted to obtain the records of Ms.Bradley and to depose her, contending that these records are relevant to causation of the alleged psychiatric injury and apportionment of permanent disability caused by that injury. The workers’ compensation administrative law judge (WCJ) denied applicant’s Petition to Quash Subpoena Duces Tecum, denied applicant’s Petition to Quash the Deposition of J. Bradley, LCSW; and ordered applicant to sign a release for the records of J. Bradley, LCSW and ordered the deposition to go forward. Applicant filed a timely, verified Petition for Removal, requesting that the Appeals Board rescind the Orders. Removal was granted in the panel decision of Kelly Snow v Health Net.

Applicant contends in her Petition that both she and Ms. Bradley may assert and have asserted the psychotherapist-patient privilege and refused to disclose confidential communications between them; and that because Ms. Bradley is neither a physician nor a psychologist, pursuant to Labor Code section 3209.3(a) and (b), her records cannot be reviewed by an evaluating qualified medical evaluator (QME), pursuant to Administrative Director Rule 35(a)(l) and (2) (Cal. Code Regs., tit. 8, § 35(a)(l) and (2)) and therefore are not discoverable.

The WCAB concluded that as to whether the records of Ms. Bradley can be provided to the QME for review, Rule 35(a)(5) provides that “[n]on-medical records … which are relevant to determination of medical issue(s) in dispute” may be provided to a QME. Even though Ms. Bradley is not a physician pursuant to section 3209.3( a) and (b ), her records and her testimony are “non-medical records” and may be sent to the QME.

As to the psychotherapist-patient privilege, as a licensed clinical social worker, Ms. Bradley is a “psychotherapist” pursuant to Evidence Code section 1010(c). Applicant is the “holder of the privilege” pursuant to Evidence Code section 1013(a). Both she and Ms. Bradley may claim the privilege to refuse to disclose confidential communications between them, pursuant to Evidence Code section 1014(a) and (c). However, Evidence Code section 1016 provides: “There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by: (a) The patient.”

However, the waiver contemplated by Evidence Code section 1016 may not be a complete waiver of the privilege but only a limited waiver concomitant with the purposes of the section. As the Supreme Court stated In re Lifschutz (1970) 2 Ca1.3d 415 that the patient is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.

The WCAB noted that in this case, Ms. Bradley wrote a letter to the process server of the SOT for her records, stating: “The records that I have regarding the above named precede the accident of March 14, 2011 by a number of years. As these records do not relate to this event or injuries, I do not feel comfortable in releasing her private information.” Therefore, there is an issue as to whether the records of Ms. Bradley relate to the mental conditions that applicant has disclosed in this case or whether they relate to “other aspects of [her] personality,” in which case disclosure may not be compellable. For this reason, the WCJ in his Report and Recommendation recommended that the WCAB grant applicant’s petition so that there can be further consideration of whether some or all of Ms. Bradley’s records may still be privileged, despite applicant’s allegation of injury to psyche in her injury of March 11, 2011.

Thus the WCAB agreed with the Recommendation of the WCJ and granted removal, rescinded the Orders dated June 19, 2013, and returned the matter to the trial level for further proceedings.

The Orange County Register reports that a Fullerton tree-trimming business owner who filed workers’ compensation insurance claims for one worker killed in a wood chipper and a second seriously injured in an on-the-job vehicle accident–despite never having paid premiums for the employees–was sent to prison for five years.

Jose Luis Guerrero, the 45-year-old owner of Jose Martinez Tree Service Inc., had pleaded guilty to under-reporting more than $2 million in payroll to the State Compensation Insurance Fund between March 2005 and March 2009.

It was a review of the Nov. 7, 2007, wood-chipper death of Gabriel Gonzalez by State Compensation Insurance Fund officials that uncovered the widespread fraud, according to Deputy District Attorney Debbie Jackson. For four years beginning in March 2005, Guerrero under-reported his payroll to the state insurance fund by more than $2 million so he would have to pay less in workers’ compensation insurance premiums, according to the Orange County District Attorney’s office, which also accused him of illegally paying some of his employees in cash.

Guerrero pleaded guilty Dec. 20 to 20 counts of intent to evade taxes, four counts of false or fraudulent statements to reduce premiums, and two counts of making fraudulent statements to obtain or deny compensation, all felonies.

He also admitted to sentencing-enhancement allegations for aggravated white collar crime between $100,000 to $500,000 and theft exceeding $150,000, and also pleaded guilty to misdemeanor possession of an assault weapon.

Arthur Cannon injured his left foot and heel while working as a police officer for the City of Sacramento. He was diagnosed with plantar fasciitis and provided with physical therapy, cortisone injections , and an orthotic device. His primary treating physician found him permanent and stationary in January 2010, with no impairme nt of his activities of daily living and capable of performing his usual occupation.

An agreed medical examiner, Dr. William Ramsey, agreed Cannon was permanent and stationary and that there was no impairment but recommended that he be precluded from such things as prolonged running. Dr. Ramsey explained in a supplemental report that at the time of his original report, he was “unable to offer any impairment from a strict interpretation of the AMA Guides, 5th Edition” because “other than some tenderness, no objective abnormalities were identifiable.” Now, however, Dr. Ramsey determined that it was acceptable to characterize Cannon’s residual condition “using a gait derangement abnormality” “by analogy, using Almaraz/Guzman-II as a basis.” Noting that Cannon’s problem was “relatively mild,” with “the left heel causing weightbearing problems” and the likelihood that the condition “would . . . be aggravated appreciably by running activity on other than a short-term basis,” Dr. Ramsey recommended characterizing Cannon by reference to “Table 17-5, page 529,” as having “a limp, despite the absence of any arthritic changes about adjacent joints, equivalent to 7% whole person impairment.”

Ramsey continued to explain in yet another subsequent report that because Cannon’s heel pain “interferes with weightbearing activities, particularly running,” he “thought that by analogy, it would be similar to an individual with a limp and arthritis, resulting in the 7% impairment recommended.” He conceded however that that “heel pain, or for that matter, other aspects of pain that do not have any accompanying objective measurement abnormalities, do not rate anything in the AMA Guides, whether or not these problems interfere with one’s activities.”

In a trial brief, the city argued that a rating by analogy under Almaraz/Guzman would be proper only if the case could be characterized as “complex or extraordinary,” which Cannon’s injury could not be. The workers’ compensation judge (judge) agreed, finding that Cannon had no permanent disability because his medical condition was not complex or extraordinary and therefore did not warrant departure from a strict application of the AMA Guides.

Cannon petitioned for reconsideration, arguing that a case does not have to be complex or extraordinary to be rated by analogy under Almaraz/Guzman. The board granted reconsideration and, agreeing with Cannon in a split panel decision, rescinded the judge’s findings and award and returned the matter to him for a new permanent disability rating based on Dr. Ramsey’s findings.

The Court of Appeal affirmed the award in the unpublished case of City of Sacramento v WCAB (Cannon).

The city argued that a rating by analogy under Almaraz/Guzman is permissible only in complex or extraordinary cases. The Court of Appeal disagreed. It concluded that “this is an unwarranted interpretation of the Sixth District’s decision in Milpitas Unified. What the Sixth District said was this: ‘The Guides . . . cannot rate syndromes that are ‘poorly understood and are manifested only by subjective symptoms.’ [Citation.] [¶] To accommodate those complex or extraordinary cases, the Guides calls for the physician’s exercise of clinical judgment to assess the impairment most accurately.’ (Milpitas Unified, supra, 187 Cal.App.4th at p. 823, italics added.) Thus, the Sixth District was using the term ‘complex or extraordinary cases’ to describe ‘syndromes that are ‘poorly understood and are manifested only by subjective symptoms,’ which the AMA Guides do not, and cannot, rate.”

“It is undisputed that Cannon’s condition — plantar fasciitis — is manifested only by his subjective experience of pain. Thus, his condition appears to fall right into the category of cases the Sixth District was describing in Milpitas Unified, where the AMA Guides ‘calls for the physician’s exercise of clinical judgment to assess the impairment most accurately.’ (Milpitas Unified, supra, 187 Cal.App.4th at p. 823.) Dr. Ramsey performed that assessment here and determined that Cannon’s plantar fasciitis resulted in a 7 percent whole person impairment equivalent to a limp with arthritis. The city has shown no error in that assessment and no error in the board’s decision based on that assessment.”

Floyd, Skeren and Kelly LLP is pleased to announce the formation of its disabled veterans litigation unit. The attorneys in this group represent veterans who have claims for benefits pending before the Veteran’s Administration.

Veterans qualify for disability benefits if they suffer from a current diagnosis that has a “nexus” with military service. The scheme of benefits is very similar to workers’ compensation for civilian workers. The veteran need only show active military service, a discharge at greater than dishonorable service and a “nexus” between the current disability and military service to receive benefits. The nexus can be established by direct injury, an aggravation of a disease by military service, or by a presumption of causation imposed by federal law or in other ways. A nexus issue in veteran cases has the same implication as an AOE-COE issue in workers’ compensation claims.

Vietnam veterans, for example, who have had “boots on the ground” in Vietnam, even for one day, qualify for the Agent Orange presumption. Agent Orange is one of the herbicides and defoliants used by the military as part of its herbicidal warfare program. Between 1962 and 1971, the military sprayed nearly 20 million gallons of Agent Orange over Vietnam. The product contained an extremely toxic dioxin compound. Dioxins and furans are some of the most toxic chemicals known to science. Vietnam veterans who develop a number of diseases years after service such as ischemic heart disease, diabetes mellitus type II, a number of cancers including prostate cancer (and other listed diseases) are presumed to have a nexus between military service and those medical conditions;

Once a nexus has been established, a veteran may obtain medical care in any VA facility nationwide. This may include free care for health problems in addition to those that are service connected. The veteran may also receive a monthly tax free disability payment. The disability is rated using a rating schedule similar to the workers’ compensation scheme. The rating can increase over time if the condition worsens. There is no time limit to request an increase of a disability award. The system provides death and survivor benefits, payment for at home attendant care, educational and rehabilitation benefits and more.

Another veteran program provides a pension to war era veterans who are totally disabled for any reason even if there is no service connection. This program is “means tested” meaning that current income is measured and used to offset this benefit. If a war era veteran is 65 years of age or older, they are presumed to be totally disabled and entitled to this pension. The means testing allows the veteran to reduce any income by current medical expenses. Thus, even veterans who have a source of income may qualify for a pension if their income is currently used for medical care.

If a veteran’s claim for disability compensation or pension is turned down by the VA Regional Office (RO), they may seek the services of an “accredited” advocate to appeal an unfavorable decision. Lay and attorney advocates must be accredited by the Office of the General Council of the Veterans Administration to assure a minimal level of competency before they can serve a veteran. The appeal begins at the Regional Office where the claim was filed. The Veteran can ask for a de-novo review of the file by a Decision Review Officer (DRO). If unsuccessful, the claim can then be appealed to the Board of Veteran’s Appeals (BVA). The BVA decision can be appealed to the Court of Appeals of Veteran Claims (CAVC) and ultimately to the U.S. Supreme Court.  These cases are quite similar to workers’ compensation litigation in that they heavily involve forensic medical issues.  Practitioners need considerable experience with medical terminology and medicine in general.  Generally advocates can be paid a contingent fee of 20% of accrued and unpaid benefits as of the time of the successful appeal.  Thereafter the veteran retains 100% of the balance of the award.

Three of our attorneys, Rene Thomas Folse, Chris Lear and Tim Morgan have been accredited by the VA Office of General Council to represent veterans.  Rene is a Vietnam veteran, and Chris is also a veteran who has had several deployments in the Persian Gulf. Both served in the U.S. Army. Tim has a background in the civil litigation of medical malpractice claims and will assist with the complex forensic medical issues.

Any veteran who would like a no-cost consultation about his or her right to benefits may call Rene, 818 651-7028.  He is the litigation group lead counsel, and does initial client contact and intake. Since this is a federal program, we can represent veterans nationwide.  In those cases we will conduct our interviews by teleconference.

In Title V of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act), Congress established the Federal Insurance Office (FIO) within the U.S. Department of the Treasury. One of the tasks of the FIO is to monitor all aspects of the insurance industry, including identifying issues or gaps in the regulation of insurers that could contribute to a systemic crisis in the insurance industry or the U.S. financial system. The Dodd-Frank Act also requires that the FIO Director report to the President and to the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate each year “on the insurance industry and any other information as deemed relevant by the Director or requested by such Committees.” FIO has prepared its 2013 Annual Report on the Insurance Industry with a view to its role as monitor of the insurance industry.

This Report says that the financial performance and condition of U.S. insurers continued to show recovery and improvement from the decline during the financial crisis. In 2012, the U.S. insurance industry reported record aggregate premium levels. The two principal sectors in the U.S. insurance industry are life and health (L/H) and property and casualty (P/C). The U.S. insurance industry currently has more than 1,000 L/H insurers and more than 2,700 P/C insurers. At year-end 2012 reported surplus levels were at record highs for both sectors. Both reported improved profitability in 2012. Market values of insurers have also been recovering since the financial crisis, when large investment losses led to sharp declines in the book values for many insurers..

L/H insurer insolvency levels are at the lowest point in forty years. P/C insurer insolvency levels are at relative lows compared to the last few decades. Insurer insolvencies occurred with some regularity during the late 1980s and early 1990s, and peaked in 1991 at 142. These insolvencies prompted Congressional inquiries and efforts by state regulators to develop a program whereby states were required, through an accreditation process, to adopt solvency laws and regulations that meet certain minimum standards. The laws and regulations of an accredited state must contain provisions substantially similar to, or no less effective than, the significant elements of the NAIC model solvency oversight laws and regulations that state regulators have identified as key. The accreditation standards include compliance with standardized practices, including those pertaining to off-site financial analyses,on-site financial examinations, cross-jurisdictional regulatory information sharing, and assessment and intervention authority with respect to troubled insurers. The accreditation process is a peer review exercise, and all 50 states and the District of Columbia are currently accredited by the NAIC. As a result, the responsibility for taking regulatory actions rests with the insurance regulator of the state in which the legal entity is domiciled. The frequency of L/H insurer insolvencies has decreased since the early 1990s and has remained at relatively low levels for the period during and since the financial crisis. The number of reported financially impaired L/H insurers in recent years is at the lowest since the 1970s.

Despite the seemingly good financial news, the report concludes that insurance regulation in the U.S. is best achieved through a hybrid model in which state and federal authorities can work together, their roles defined by which strength each party brings to the process of improving solvency and market-conduct regulation.  According to an article in the Insurance Journal, industry reaction thus far has been measured, if not mostly predictable: David Sampson, president and CEO of the Property Casualty Insurers Association of America, notes that the report “starts by listing a number of attacks on state regulation that PCI believes does not adequately reflect the strengths and historical success of the current state-based system.” Similarly, the National Association of Professional Insurance Agents (PIA) says the report fails to properly highlight conclusions of a June 27 Government Accountability Office report stating that the state-based system worked effectively to help mitigate the negative impacts the 2008 financial crisis had on the insurance industry. Interestingly, one group that didn’t question the report’s assessment of the state-based system was the National Association of Insurance Commissioners, which is comprised of state-based regulators. NAIC President and Louisiana Insurance Commissioner Jim Donelon says in a statement that the 71-page report “acknowledges the effectiveness of state-based insurance regulation and the improvements states have made.” No chest-beating there.Cheering the strengths of state regulation, however, was never the point of the FIO’s report.

One of the more colorful turns of phrase in describing the FIO’s recommendations was offered by PIA National Executive Vice President and CEO Mike Becker, who said while the group needs to take a closer look at the FIO report, “On first blush, this looks like the camel’s nose under the tent.”