{ }

Recent Take Nothing Award – Jeffrey J. Whitelaw – Mar 2017

Applicant, a 58 year-old, claimed they suffered a right knee injury while working at a landfill as an employee of a placement agency. The claim was denied following an employer-level investigation.

Applicant received significant conservative medical treatment and underwent a right knee MRI revealing significant damage. Applicant’s treating physician issued multiple reports indicating that applicant’s condition remained temporarily totally disabling. He also referred applicant to a specialist and thought applicant would ultimately require surgery on their knee. The parties also went to a PQME who opined that applicant’s injury was consistent with the described mechanism of injury.

Prior to trial, the parties had agreed to settle this matter for a $20,000.00 Compromise and Release. Applicant, however, then fired his attorney and retained new counsel. Applicant’s new attorney informed defendants that the case value was closer to $100,000.00, given the nearly 15 months of TTD potentially owed as well as expected permanent disability and future medical care.

After further settlement negotiations stalled, the parties conducted the AOE/COE trial. Applicant testified on his behalf and claimed that he had stepped into a sinkhole while working at the landfill causing the right knee injury. Applicant further testified that, immediately after injuring himself, they informed a co-worker, the landfill supervisor and their supervisor. Defendants presented two witnesses: applicant’s co-worker and their supervisor. Both denied that applicant had reported the injury on that day. Applicant’s supervisor further testified applicant had later come to his office and was paid for the week.

After hearing testimony, the trial Judge, ruled in defendants’ favor and issued a Take Nothing. The Judge found a number of inconsistencies in applicant’s testimony and found that defendants’ witnesses testified credibly.

Order Obtained – Julie Lam – Jan 2017

Order Obtained for Imposing Sanctions on Lien Claimant, Pursuant to their Petition

Lien claimant filed a DOR for a lien conference. We appeared in Los Angeles, where were able to review their bill and discover that they had filed their lien more than 10 years after their last date of service. We made a good faith offer to resolve their lien, as they had passed the statute of limitations. This was rejected, and they indicated they were requesting discovery. We stated that if they continued the lien conference for additional information, we would be filing a petition for costs and sanctions as they were aware they were now past the statute to collect on their decade-old lien.

Nevertheless, we then appeared at the continued lien conference in Oxnard, petition for costs and sanctions in hand. At the Oxnard Board, lo and behold lien claimant does not appear. The Judge then indicated that lien claimant had in fact been dismissed and was served the dismissal, stating that lien claimant’s behavior were sanctionable and so we amended our Petition for Costs and Sanctions even further.

He eventually issued a Notice of Intent to Issue Sanctions against lien claimant and their representative, both of whom were served with the original and amended petitions, as well as the NOIs, with no objections.

Recent Take Nothing Award – Sumit Raghuvanshi – Dec 2016

The case involved two specific injuries one on 2/1/2012 and the other on 11/1/2012. Applicant’s medical reporting was all over the place. The QME on this matter stated that there was no injury and that the applicant was not reliable. Our defense attorney cross examined the applicant at trial who kept going back and forth and stated that he could not remember. DA also introduced sub-rosa at the time of trial. The Judge, found applicant not to be reliable and issued the Take Nothing on both claims!

Recent Take Nothing Award

Applicant, a 60 year old farm laborer, claimed to have suffered a cumulative trauma injury to his neck, abdomen, back and foot in the course & scope of employment with the farm labor contractor (06/01/2012 – 10/19/2012). Applicant had worked in the fields for approximately 10 years. His job duties did include frequent repetitive work of removing leaves and gathering grapes and walking on wet surfaces. Applicant alleged being exposed to pesticides and working in the fields over the years had caused his symptoms. This claim was timely denied based on a lack of medical evidence to support a claim of injury and a lack of timely reporting to the employer.

The Applicant’s only evidence in support of an industrial injury were reports from non-MPN PTP, Dr. Toutoundjian. According to the medical reports, over time, the applicant developed neck pain, groin, mid back and low back pain radiating to his left foot from working his daily job duties. Dr. Toutoundjian found the applicant on TTD for Applicant had also been recently diagnosed with autoimmune disorder, Myasthenia Gravis (MG).

Applicant was seen by an internal QME who found all of the applicant’s symptoms were related to the MG. The QME found the applicant’s history of working around pesticides in the fields would not cause the MG or current symptoms. The QME also noted that the autoimmune MG would have been present absent any industrial exposure and did not find an industrial injury.

At Trial, Applicant’s attorney did not provide evidence to rebut the QME report. The Applicant refused to testify on his own behalf. Applicant’s attorney did not support his burden of proving the claim was AOE/COE.

Since the applicant could not prove his injury was industrially related, the ALJ ordered the applicant to take nothing on his claim. The Applicant is not entitled to compensation in the form of temporary disability, permanent disability, need for further medical care, or coverage of attorney’s fees.

Recent Take Nothing Award

The Applicant, a 44-year-old male, was working as a baker at a large grocery chain on the date of the alleged injury. The Applicant claimed to have suffered a cumulative trauma injury to his eye, back, psyche, respiratory system, sleep disorder, & skin in the course & scope of employment with the grocery chain (December 30, 2011 – November 14, 2012). This claim was timely denied based on a lack of medical evidence to support a claim of injury and a lack of timely reporting to the employer.

The Applicant’s only evidence in support of the injury AOE/COE was the medical reporting of his primary physician, Chiropractor Caligiuri. Caligiuri’s reliance on the Applicant’s inadequate & inaccurate medical history, as well as his failure to review the Applicant’s prior medical history represented two big flaws in his evaluation of the Applicant. The Applicant had failed to disclose to Chiropractor Caligiuri his prior industrial back injury & his prior motor vehicle accidents. Three separate & independent Panel Qualified Medical Examiners (PQMEs) conducted exhaustive reviews of the Applicant’s prior medical history & found the Applicant’s alleged injuries non-industrial in nature & unrelated to his employment at the grocery chain, based on several, irrefutable factors.

At trial, the Applicant outright misstated that he did not have a prior back injury. He stated that his previous workers’ compensation claim with another firm was for an injury to his right shoulder, despite medical & legal evidence disproving his statements. None of this information was mentioned to any of the PQMEs that met previously with the Applicant. The Applicant admitted he did not tell anyone that he worked with that his injuries were work related.

Further, it is found that Chiropractor Caligiuri’s reports were inadmissible for failure to rise to the level of substantial medical evidence. Due to absent medical evidence to support his claim of industrial injury, the applicant is incapable of meeting the burden of proving the injury AOE/ COE.

The Applicant was found to be less than credible. His testimony at times was inconsistent with the information contained in the medical record & his deposition testimony. He denied knowing any of his injuries were work related before he stopped working.

As injury was found to be not industrially related, the Applicant is not entitled to compensation on the basis of temporary disability, permanent disability, apportionment, need for further medical care, or coverage of attorney’s fees.

The Applicant was ordered by the ALJ to take nothing on his claim.

Recent Take Nothing Award

This matter involved a denied Specific Injury claim by the Applicant. The Defendant’s denial was based on the initial aggressor defense under LC 3600.

The Applicant claimed that he was involved in an altercation with his supervisor. It was stated by the Applicant that his supervisor was the initial aggressor, while the supervisor claimed that the Applicant was the initial aggressor. The Applicant sustained a laceration to his left eyebrow as a result of the altercation. When the Applicant retained counsel, he reported that he had pleaded a skin and contents claim.

Immediately after the incident, the Applicant went to the emergency room and got stitches. The only complaint he mentioned on the date of the injury was in regards to his eyebrow. One week later, he went back to get the stitches removed &, still, the only complaint that he had was in regards to his eyebrow.

Two days of trial on the matter, with out-of-state witnesses and the employer’s testimony regarding the fight, the Judge found that the Applicant was not the initial aggressor but threw out all of the body parts pleaded with exception to the left eyebrow. The matter then went forward, a year later, to the third day of trial with regards to permanent disability, temporary disability, and need for future medical care. The Judge issued a “findings of fact” and determined that the Applicant would “take nothing,” as the laceration to the left eyebrow is not ratable and thus, there is no temporary disability or need for future medical care.

Recent Take Nothing Award

The Applicant filed a specific injury claim against his employer, an automotive parts manufacturer. The Applicant claimed that he injured multiple body parts and stated that he immediately felt pain on the day of the incident. He promptly reported the claim. The Applicant was later terminated for cause.

This Applicant also had a concurrent workers compensation claim against the State Compensation Insurance Fund (SCIF) with a different employer. We were able to subpoena the records from his medical treatment specialists at the facility he was being treated at for his subsequent workers’ compensation claim and we found that four days after the said incident with the automotive parts manufacture had occurred, the Applicant had an orthopedic follow up and did not mention the specific injury from the other employer, just his claim against SCIF.

We deposed the Applicant & he testified that he told several co-workers as well as his supervisor of his work related injury right when it had occurred.

The matter went forward to trial & we were able to secure witnesses from the employer. At trial, the Applicant testified that he only told the employer and he did not tell any other person. We used the deposition to impeach the Applicant. We had the employer and the other co-workers testify. They testified that the Applicant never reported the injury and that he was working his normal job duties at the time of the claimed injury. We were also able to rebut the Applicant’s testimony with the statements he made to his primary treating physician with regards to the mechanism of injury.

The Judge issued a Take Nothing Award in favor of the Defendant. In his decision, the Judge stated that he did not find Applicant to be credible. The Judge also used the defense witness’ testimony, as well as the medical report from his concurrent workers compensation claim.

Recent Take Nothing

The Applicant, a 48-year-old man, was temporarily working for a door manufacturer at the time of his claimed injury. The Applicant claimed to have sustained a specific injury to his back, head, arms, upper extremities, chest, neck, and spine on October 30, 2013, while lifting a pressboard. This claim was timely denied based on discrepancies between the applicant’s statements regarding the date of injury and the date of first treatment (first treatment reported to be before the date of injury), as well as the employer witness statements that the applicant failed to report any injury prior to his termination/ending of his assignment on Nov 4, 2013.

Subpoenaed records confirmed that the Applicant sought medical treatment on November 2; however, his complaints on that date were solely related to a cold. No orthopedic injuries or complaints were listed in the medical record. The first treatment record listing any orthopedic complaints was from Nov 8, after the assignment had ended.

The Applicant did obtain a medical-legal report based on the denied claim, but gave the QME a false/inaccurate history stating that he had never had prior injuries or complaints to his back. He has more than 10 prior injury claims, many of which he has litigated at the WCAB.

Trial was held on June 22, 2015, at which we submitted prior decisions and opinions of the WCAB in which injury was found for some claims and not found in others; the medical report from November 2 showing non-orthopedic complaints; and an employer witness who testified consistent with his earlier statement that no injury was reported prior to the applicant’s assignment ending. The Applicant submitted treatment records obtained after his termination and the QME report containing the inaccurate history given by him. The finding of prior injuries to the various body parts further highlighted the inaccuracy of the QME report & the trial testimony for the injuries that were not found underscored the Applicant’s prior complaints.

Judge Sadosky found the employer witness to be more credible than the applicant; she specifically found the QME report to be based on a false/inaccurate history and indicated that the record did not reflect any treatment for orthopedic injury complaints prior to termination, and as such, the affirmative “post termination” defense under Legal Code 3600(a)(10) was successful. It was found that the Applicant did not sustain injury arising out of and in the course of employment. It was ordered by the ALJ that the Applicant take nothing.

Dismissed Petition for New & Further Disability

The Applicant, a 23-year-old male who was working as a farm laborer, suffered an industrial injury to his back and psyche on August 17, 2009. After the parties conducted discovery, the matter was settled via Stipulations with Request for Award (stips) on March 18, 2013 at 39% permanent disability & a further need for medical care.

On August 14, 2014, the Applicant filed a skeletal Petition for New and Further Disability. The Applicant did not specifically identify any new medical evidence supporting his claim for further disability. On April 23, 2015, a Mandatory Settlement Conference (MSC) was held. By the time of the MSC, the applicant had not appeared for a medical/legal evaluation to assess new and further disability. The Defendants were able to close discovery and set the matter for trial.

Trial was held on June 17, 2015 at which time the Applicant could only offer a treating doctor report as evidence of his new and further disability. Both the Applicant & his wife testified that he was generally worse off than he was at the time of the stips. These statements were not adequate evidence, as disability requires expert medical opinion, and the information was ultimately dismissed.

After the trial was held, Judge Gregory Cleveland issued a Findings and Order on July 8, 2015, ruling that applicant had not presented any medical evidence of new and further disability and, as such, dismissed applicant’s Petition.

Sidebar