Acosta Law Office

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09/16/2020

The issue of apportionment of PD due to pre-existing osteoarthritis was again the subject of a WCAB decision in DURAZO v. SOLOMAN DENTAL CORP, 2020 Cal.Wrk.Comp.P.D.LEXIS__. In Durazo, the applicant had knee replacement surgery with a poor result. Two doctors found the PD was due solely to the work injury and poor surgery results while a QME found 50% apportionment to pre-existing osteoarthritis. The trial judge followed HIKDA and said no to apportionment. The WCAB concluded that the recent JUSTICE decision should be considered and sent the case back to the trial judge to find out whether the knee replacement surgery eliminated the pre-existing arthritis which could then eliminate any apportionment of PD. HIKADA and JUSTICE will continue to conflict with each other until the Cal legislature or Cal Supreme Court resolve the conflict over how to apply apportionment to PD caused by medical treatment of a work injury.

09/16/2020

Under the case of SAUCEDA v. FRESNO UNIFIED SCHOOL DISTRICT, 2020 Cal.Wrk.Comp.P.D.LEXIS 137, the Fresno school district was held liable for serious and willful misconduct under LC 4553 because it failed to warn a teacher about a violence prone student and it failed to take corrective action by moving the student to a different classroom after the teacher requested it. The teacher was attacked and injured by the student. Under Education Code 49079, a school district is required to warn a teacher if one of her students has caused or threaten to cause physical injury to another person. A knowing failure to warn is a misdemeanor. No warning and no corrective action resulted in a 50% increase in work comp benefits under LC 4553.

09/16/2020

Medical treatment is subject to Utilization Review which can approve or deny the treatment. Under the DUBON case, the UR must be timely, otherwise the WCAB has jurisdiction to award treatment based on substantial medical evidence. Another way to get around a UR denial of care is if the PTP submits a 2nd RFA based on a documented change in the facts material to the basis of the UR. Normally you have to wait 12 months to submit another RFA for the same denied treatment. However, once the PTP submits another RFA based on a change of material facts, the adjuster must send it to UR or risk blowing the UR timeline. This was the case in Smith v. Marin General Hospital, 2020 Cal.Wrk.Comp.P.D.LEXIS__, wherein a fusion surgery was denied by both UR and IMR, but then applicant’s condition worsened resulting in new diagnosis of cauda equine syndrome. A new RFA was submitted indicating a Resubmission-Change in Material Facts. The WCAB held the adjuster’s failure to send this 2nd RFA to UR gave the WCAB jurisdiction to award the surgery. Under Wyant v. American Medical Response(2017) 83 CCC 946, if the first RFA was not clear that conservative care had failed, the 2nd RFA explaining the ineffective conservative care qualified as a change in material facts to support the UR approval of surgery.

Say hello to the Acosta Law Office team! ⚖️👋⚖️
10/16/2019

Say hello to the Acosta Law Office team! ⚖️👋⚖️

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