DMEC (Disability Management Employer Coalition)

Bill Armstrong will be speaking at the DMEC (Disability Management Employer Coalition) 11/8/18 on “2018 Cases in Review and Legislative Update”

November 8, 2018 | 8:00-11:00 am PT

Join us for the final DMEC San Jose (CA) chapter meeting on Nov. 8! We will explore the “ins and outs” of workers’ compensation (WC), the Fair Employment and Housing Act (FEHA), and the Americans with Disabilities Act (ADA). We’ll also cover 2018 WC cases in review, and highlight what to expect in 2019.

Learning Objectives
Gain an understanding of the new attacks on apportionment.
Discover what employers need to know about psychiatric  injuries.
Explore how fraud doesn’t necessarily bar benefit (Person Ford v. WCAB).

Register Here

Nov 2018 DMEC Flyer 11.8.18 WJA Speaking

WCAB Limits Scope of Discovery

WCAB Limits Scope of Discovery

By Kia Myers

Recently, the WCAB issued a decision limiting the scope of discovery of Defendant’s subpoena for medical records. In Gildo Beitia v. City of Oakland, 2018 Cal. Wrk. Comp. P.D. 228, the WCAB denied Defendant’s Petition for Removal of WCJ’s Ordering Limiting the Scope of its subpoena for medical records in a split decision. Defendant argued that by issuing the order without a hearing Defendant’s right to due process was denied. The WCAB disagreed.

In Beitia, Applicant filed a specific injury claim on September 3, 2015 involving his back and spine and included hypertension and weight gain as a compensable consequence. Defendant issued subpoenas for Kaiser and Advance Physical Medicine and Rehabilitation Group (Advance Physical Medicine). On September 19, 2017 applicant filed a Motion to Quash defendant’s subpoenas for any and all medical records from Kaiser and Advance Physical Medicine. The WCJ issued the Order limiting the scope of the subpoenas to injuries filed in the claim (back, spine, weight gain, and hypertension) on November 6, 2017.

In its decision the WCAB appear to agree that the subpoena was overbroad and therefore was not persuaded that substantial prejudice would result from the denial of the Petition for Removal. The WCAB opined that there are other forms of discovery to determine if additional records are necessary, such as the deposition of a treating physician or subpoenaing of additional records.

What is not clear from the decision is whether applicant’s deposition has been taken. If it had not Defendant could question applicant about their medical history. Was there a medical condition that applicant did not want revealed?

As a defense attorney, I have to own up to my immediate suspiciousness about this case. My thought is what is the applicant trying to hide? When I put myself in applicant’s position, I can understand why one would be concerned about one’s entire medical history being released to the insurance company. Having your medical records released could feel extremely invasive at worst, and unnerving at best. However, when one puts their medical condition at issue, it opens the discovery into one’s relative medical history.

Applicant has claimed compensable consequences of weight gain and hypertension. A relevant medical records should be reviewed to determine causation. Weight gain and hypertension are conditions that could have various causes, including other medical conditions or medications.

Let’s consider hypothyroidism, a condition that is known to cause weight gain. What if applicant was diagnosed with hypothyroidism and the condition was possibly the cause of applicant’s weight gain? Based on the Order limiting, it is likely that records related to this condition may not be released. If applicant fails to disclose the thyroid condition, would Defendant have a basis for additional discovery such as a physician deposition to support a release of the records? What other options would Defendant really have to support the release of records of other possibly relevant medical conditions?

As the dissent noted, it is necessary for the doctor to review all available medical records which might impact the issue of weight gain and hypertension. Without the complete records, an evaluating physician would not have all of the relevant information to make a fully informed opinion. Kia Myers Holsey is an associate attorney at Armstrong Law Firm in San Jose, California.

© Copyright 2018 Kia Myers. All rights reserved.

 

 

reference this article was written for the CLA eNews, Sept 2018 edition

2018 Spring Educational Conference – Pismo Beach

Earn 6 Hours of participatory MCLE and Legal Specialization Credit!

In TWO locations! [click for San Francisco (March) Location Here]

The impeccable William Armstrong kicks off the morning with a comprehensive analysis of the delicate interplay between the Supplemental Job Displacement Voucher return-to-work process and the DFEH regulations triggering the interactive process. Mr. Armstrong will discuss significant ethics and conflict of interest concerns in representing insurance companies and employers during the return-to-work process including crossover issues with 132a claims and ADA claims. He will detail the impact of WCAB stipulations and decisions which can potentially be binding upon the DFEH process and cover recent District Courts of Appeal decisions dealing with exclusive remedy doctrine.

 

View William Armstrong’s PowerPoint Presentation from the 2018 Educational Conference by clicking here: 

“Identifying Crossover Issues Impacting Exclusive Remedy to Return to Work” 

 

2018 Spring Educational Conference – San Francisco

Earn 6 Hours of participatory MCLE and Legal Specialization Credit!

In TWO locations! [click for Pismo Beach (April) Location Here]

The impeccable William Armstrong kicks off the morning with a comprehensive analysis of the delicate interplay between the Supplemental Job Displacement Voucher return-to-work process and the DFEH regulations triggering the interactive process. Mr. Armstrong will discuss significant ethics and conflict of interest concerns in representing insurance companies and employers during the return-to-work process including crossover issues with 132a claims and ADA claims. He will detail the impact of WCAB stipulations and decisions which can potentially be binding upon the DFEH process and cover recent District Courts of Appeal decisions dealing with exclusive remedy doctrine.

 

View William Armstrong’s PowerPoint Presentation from the 2018 Educational Conference by clicking here: 

“Identifying Crossover Issues Impacting Exclusive Remedy to Return to Work” 

2017 DMEC (Disability Management Employer Coalition) San Jose Chapter Meeting

WORK INJURIES: WORKERS’ COMPENSATION, FEHA, AND THE ADAAA

Plan to join us for the last San Jose (CA) chapter meeting of 2017 as Bill Armstrong leads his 21st DMEC presentation! In this interactive session, we will learn about the most recent legislative updates and case law that impacts an employers workers’ compensation claims, FEHA, and ADAAA. Also, get a preview of what to expect in 2018.

Please register by Nov. 3. 

2017 Spring Education Conference

Program will be presented live and via webcast.

Bill Armstrong will be speaking during the morning session:

The New Landscape of Psyche Claims
“The psyche claim has perhaps undergone the most legislative reform of any body part in the workers’ compensation history. It seems like every few years, the analysis for psyche claims changes, which makes it difficult for both evaluators and practitioners to properly develop medical evidence that is compliant with the law. This panel of expert litigators will provide their best tips for handling psyche claims post SB-863 including a detailed analysis of the latest case law affecting the psyche claim.”