Senate Bill (SB) 863 and California’s Workers’ Compensation Appeals Board

The recent case of Eun Jae Kim v. B.C.D. Tofu House, Inc. is the second case that has come down addressing SB863 changes regarding the Medical Provider Network (MPN). the first case was the Supreme Court of California’s ruling in the Valdez v. WCAB matter, determining that the provisions of SB863 relating to admissibility of non MPN reports pertains to all existing cases.

In the recent case of Eun Jae Kim v. B.C.D. Tofu House, Inc. the Workers Compensation Appeals Board held that the defendant has the available remedy of an expedited hearing on the matter of compelling an injured worker to treat within its MPN during the delay stage of a claim.

Based on the recent decisions, as well as the legislative intent of SB863 it becomes clearer than ever that exercising medical control during the start of a claim is essential in having proper management of a claim.

By Michael J. Costello, Managing Partner, Continuing Education

MPN – Expedited Hearing – Kim v Tofu House (PDF)



California AB 1309 Sports Update

ATB LAW NEWS: AB 1309 has been approved by the California Senate and Assembly. The new law would add language to Labor Code section 3600.5 saying that an athlete is temporarily in the state and not eligible to file a claim in California, if during the 365 days before his last day of work in the state, he performed less than 20% of his duty days in California.

The bill goes on to define the word “duty” as any day spent performing activities under the direction of the team. The new law would also provide a two prong test to determine if an athlete can file a cumulative trauma injury (CT claim) or an occupational disease claim. The athlete:

A. must have played for two years for a California team or worked more than 20% of his duty days in California or for a California team.

B. Must have worked for fewer than seven seasons for a team outside of California.

The new law would apply to any and all claims filed after September 15, 2013. The bill has been passed by the Senate and Assembly and the Governor has until Mid October to sign into law.

Michael J.  Pang, Managing Partner, Sports Law Practice Group

Jeffrey Adelson to speak at National Workers’ Compensation Judiciary College

ATB’s Jeffrey M. Adelson, General Counsel and Managing Partner, National Practice Group has been invited to speak at the upcoming 5th Annual National Workers’ Compensation Judiciary College in Orlando, Florida.  The topic will be “A View From the Other Side of the Bench.”  Mr. Adelson will provide the Judicial College with his insights as a trial attorney as well as how the Judges behavior impacts the outcome and the duration of litigation in unexpected ways.

New Continuing Education Video: “Handling the IMR Process”

ATB LAW: New Video

ATB’s Managing Partner of Continuing Education, Michael J. Costello, has a new video posted on our Continuing Ed Video Library. To view the presentation, please click on the title “Handling the IMR Process” located on our homepage. Michael has created a guide to the new Independent Medical Review that all California cases as of 7/1/13 are subject to. The accompanying PowerPoint can be requested directly by contacting Mr. Costello at

Watch the “Handling the IMR Process” Video



Keys to Successful Workers’ Comp Claim Closure

Across the entire workers’ compensation industry, many insurance companies and employers are sitting on large-tail claims that have exceeded the ultimate values forecast in prior years.  In a current article for Claims Journal, Steven C. Testan, Founder and Senior Managing Partner, ATB, and Misty Price, Director of Analytics, discuss keys for insurance companies to conduct successful initiatives to close their paid claims and drive down incurred losses.

Click here to read the full article

By Steven C. Testan, Founder and Senior Managing Partner, and Misty Price, Director of Analytics

ATB Expands Civil Litigation Department

atb full logo 418 x 396ATB announces the expansion of the practice areas handled by its Civil Litigation Department
ATB has announced that its Civil Litigation Department is now consulting and defending employers in a wide-range of civil litigation matters, including the defense of personal injury claims; FEHA and ADA cases; wage & hour claims; Cal/OSHA investigations; and is State and Federal  subrogation cases. ATB is now achieving its goal of being a full-service employer’s firm, and  can handle all aspects of its clients’ federal and state employment-related litigation needs.
Michael McLean, the Managing Partner of ATB’s Civil Litigation Department, observed that “ATB’s national footprint, skill and resources, uniquely position ATB to meet the employment-related needs of its local and national clients.”
Please contact Michael D. McLean for more information.

Helpful Hints on Senate Bill (SB) 863 Change in PD Advances

Change in payment of PD advances – LC 4650(b)(2)

1. If applicant is offered a position with same employer with at least 85% of AWW on DOI or if applicant is working and earning at least 100% of AWW on DOI, then PD does not have to be advanced until a Stipulated Award, C&R, or F&A.

2. Payment of PD is retroactive to P&S date or last payment of TD, whichever is earlier

3. LC 4656(c) does not change – TD still has 104 week cap

For more information please contact Michael Pang

Helpful Hints on SB 863 changes for Vocational Rehabilitation Changes

Helpful Hints: SB 863 changes for Voc Rehab: Vocational Rehabilitation Changes
a. Supplemental Job Displacement Voucher
i. LC 4658.5 – Must give this to applicant within 60 days of termination of TTD benefits
ii. LC 4658.5(d) – voucher issued after 01/01/2013, no matter the DOI, expires after 2 years or 5 years of DOI, whichever is later
iii. No voucher if employer offers applicant regular, modified, or alternative work within 30 days of termination of TTD benefits
1. If employer does not offer job, voucher must be offered within 20 days
2. Applicant entitled to voucher if no work within 60 days of receipt of PTP/AME/PQME report finding applicant P&S with WPI.


Helpful Hints on using a Voc Rehab Expert

Using a Vocational Expert

i. LC 5703(j) – reports of vocational experts allowed, but they cannot testify

1. “Direct examination of a vocational witness shall not be received at trial expect upon a showing of good cause”

ii. Vocational Expert must state in his report under penalty of perjury that the contents are true and correct to the best of his/her knowledge

iii. Vocational Expert invoice has to be admitted into evidence and the invoice must also be made under penalty of perjury

iv. LC 5307.7 – Vocational Expert services subject to fee schedule to be adopted by the Administrative Director on or before 01/01/2013

Tips on California Labor Code Section 4660.1

ATB LAW:  Helpful Hint:
The California Labor Code Sections 4660.1(c)(1) and (2)  provides for no more sleep/sex/psyche add ons.
1.      Sleep disorder and sexual dysfunction caused by a physical injury CANNOT cause an increase in the rating
2.      Psyche CANNOT cause an increase in the rating UNLESS it is due to:
a.    Violent act (LC 3208.3); or
b.    Direct exposure to significant violent act (LC 3208.3); or
c.    Catastrophic injury – including but not limited to loss of a limb, paralysis, severe burn, or severe head injury
For more please contact Kathleen Brundo, Co-Managing Partner