Tag Archives: ATB Law

DWC WARNS ABOUT BAD FAITH LIEN NEGOTIATIONS

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DWC WARNS ABOUT BAD FAITH LIEN NEGOTIATIONS:

The DWC has issued a warning about bad faith negotiations. They have stated that the DWC has received complaints indicating that payers are refusing to negotiate liens without proof that the lien claimants have filed with WCAB or paid the activation fee.

SB 863 requires lien claimants to pay $150 activation fee for liens filed after 1/1/13.

The DWC issued a press release on 2/27/13 stating:

“…that some payers have adopted a policy of refusing to discuss negotiating the provider’s liens until the provider of the services demonstrates it has filed a lien with the WCAB and paid the applicable lien filing or activation fee required by the enactment of SB 863.” Further, the DWC stated that such practices are directly contrary to the legislative intent of SB 863 as well as existing law.

This conduct by payers could expose them to sanctions, attorney fees and costs under Labor Code section 5813 as well as other audit penalties under California Code of Regulations section 10109(e).

2013 MCLE Compliance Requirements for Attorneys

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Adelson, Testan, Brundo & Jimenez would like to remind all California attorneys that the reporting deadline for 2013 MCLE Compliance is 01/31/13. All attorneys with licenses in active status with last names beginning A through G who do not have an exemption are required to report the minimum continuing legal education completed by this date. Remember, an attorney’s reporting group does not change due to a change in last name, so attorneys must report according to the group with which they originally registered.

MCLE Compliance Groups by Last Name

According to the State Bar of California, “members are assigned to a compliance group only once and remain in that same group, even if the member subsequently changes his/her last name.”  The groups differ slightly depending on the time members were admitted:

  • Members admitted on or before Feb. 1, 1992 were assigned to a compliance group based on the first letter of their last name, as listed on their official State Bar records, effective Feb. 1, 1992 (the beginning of the MCLE program).
  • Members admitted after Feb. 1, 1992 are assigned to a compliance group based on the first letter of the last name listed on their admit cards. Admit cards are filled out when they are sworn in as a members of the State Bar.

2013 MCLE Reporting Requirements

The 2013 MCLE Compliance requirements are 25 hours of education including special requirements, no more than half of which may be self-study. However, these hours may be reduced or eliminated for attorneys qualifying for certain exemptions, though these individuals must still report:

  • Proportional requirements for attorneys who were admitted or voluntarily inactive during the three year reporting period
  • Officers, elected officials, and full-time employees of the State of California
  • Full-time professors at accredited law schools
  • Attorneys or judges employed full-time by the federal government

Adelson, Testan, Brundo &Jimenez believes it is important for attorneys to note that certifications of 2013 MCLE Compliance are taken under penalty of perjury, and urges attorneys to ensure that all coursework completed meets the minimum requirements before certifying the same. Recent audits by the State Bar have found attorneys out of compliance, and audit rates for all attorneys are increasing as a result.

Adelson, Testan, Brundo & Jimenez Suggestions for Keeping in Compliance

The attorneys of Adelson, Testan et al. have decades of experience in keeping in compliance with MCLE rules and share the following tips for attorneys new to practice or even those who could use a reminder.

  • Keep attendance certificates and all coursework for completed CLE courses for at least one year after the reporting period. Making digital copies is an easy and inexpensive way to duplicate records and protect against loss.
  • Confirm that all CLE courses and providers used are approved by the State Bar.
  • Print out the confirmation that MCLE has been reported through the online My State Bar Profile as a secondary record.

If for any reason an attorney misses the 2013 MCLE Compliance reporting deadline, the State Bar will assess a $75 fine and allow the attorney 60 days to return to compliance before enacting an administrative license suspension. Attorneys should complete MCLE as early as possible and report accurately to avoid penalties.

 

Nebraska Follows Other States Covering Workers’ Comp for Undocumented Workers

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Adelson, Testan, Brundo & Jimenez (ATB Law) is committed to providing timely and practical information to employers concerned about workers’ compensation, and recent news from the state of Nebraska bears dissemination. The Nebraska Supreme Court recently ruled that illegal immigrants in the state are entitled to the same workers’ compensation disability benefits as legal workers, placing Nebraska among a growing number of states with comparable laws.

In its ruling on Moyera v. Quality Pork International, the Nebraska Supreme Court noted the legal inconsistency in denying workers’ compensation to illegal immigrants when this group is permitted to sue employers under tort law to recover damages in such cases. The Court also stated in its opinion that denying these individuals such benefits could incentivize the hiring of illegal immigrants, as by doing so employers could potentially avoid liability for workplace injuries by hiring illegal rather than legal workers.

Coverage for Illegal Immigrants Varies from State to State

Florida, Nevada, Texas, and Utah already have similar laws requiring employers to cover disability benefits for injuries sustained by illegal immigrants in the workplace. California also requires employers to pay workers’ compensation claims for illegal immigrants. Other states may expressly prohibit illegal immigrants from receiving workers’ compensation; Idaho and Wyoming are two states with such laws on the books. Still other states have ambiguous positions on this issue.

The differences in state laws can create obstacles for businesses with locations in multiple states that may have conflicting laws. The workers’ compensation attorneys of Adelson Testan et al. are aware of the uncertainties this causes for employers, and are prepared to help clients navigate the legal patchwork this situation creates in the following states:

  • California
  • Connecticut
  • Florida
  • Illinois
  • Iowa
  • Missouri
  • Nebraska
  • Nevada
  • New Jersey
  • Oklahoma
  • Pennsylvania
  • Texas

Whether your business requires workers’ compensation defense or workers’ compensation consultation to lower costs and reduce uncertainty, Adelson, Testan, Brundo & Jimenez are available to help. Contact us today to learn more about our firm’s comprehensive workers’ compensation defense services.

 

Worker’s Comp Defense Attorney Matthew Kearl Conquers Mt. Whitney

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Matthew Kearl, Partner at Adelson, Testan, Brundo & Jimenez’ Van Nuys Office, has surmounted Mount Whitney. At an elevation of 14,505 feet, Mount Whitney is the highest summit in the contiguous 48 US states and one of the highest on the North American continent. Mount Whitney is unique because not only is it the highest summit in the US, but its summit affords stunning views of the lowest point in the nation, the famed Death Valley.

Meeting the Challenge

Mount Whitney is a challenging climb for even the most experienced individuals. Since it is made up of granite, a surface that can be formidable in even the best hiking conditions, aspiring climbers must thoroughly plan and prepare for summiting the mountain. In addition to the challenges posed by the hiking and climbing surface, climbers must:

  • Follow best practices for avoiding conflicts with the bears and other wildlife that call Mount Whitney home;
  • Do without campfires or artificial heat during their time on the mountain;
  • Be prepared for inclement weather, which at such high elevations can become a major problem in a short period of time.

Summiting Success

Given these difficulties, why do individuals like Kearl summit these challenging mountains? In addition to enjoying the mountain scenery as a reward for the intense effort, summiting a peak like Mount Whitney brings successful climbers into a select group of “summiters,” an extraordinary accomplishment that comes from dedication, determination, and focus – some of the same qualities that allowed Kearl to become one of the top workers’ compensation defense attorneys in the nation.

Matthew Kearl served as California Deputy Attorney General from 1998 to 1999, and embarked on his career as a workers’ compensation defense attorney in 1999. Adelson, Testan, Brundo & Jimenez is fortunate to have him as partner at their Van Nuys office and congratulate him on this notable accomplishment.

 

 

Adelson, Testan, Brundo & Jimenez Welcomes the First Participants in Their Newly Established ATB Legal Institute

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Earlier this month, Adelson, Testan, Brundo & Jimenez (ATB Law) announced the formation of the ATB Legal Institute, a 12-week program in which recent law school graduates will work closely with ATB Law attorneys while receiving classroom instruction. The ATB Legal Institute was created to provide new attorneys with a valuable start to their legal careers by serving as a bridge between their law school education and their entry into the workers’ compensation defense field. Additionally, the ATB Legal Institute will identify selected, promising new attorneys for consideration for careers with Adelson, Testan, et.al.

The ATB Legal Institute Provides Abundant Benefits for New Attorneys

According to Kathleen L. Brundo, co-managing partner of Adelson, Testan, Brundo & Jimenez and leader of the ATB Legal Institute, “the practice of workers’ compensation defense law requires a unique combination of legal knowledge, communication and people skills, enthusiasm and insight that generally takes years to develop.” Adelson, Testan, Brundo & Jimenez hopes to advance the development of these skills for recent graduates recruited to the program. The benefits to those recruited to the program include:

  • A salary for the 12-week program
  • Hands on legal experience
  • Mentorship by an individual ATB partner
  • Participation in classes held by ATB partners and senior attorneys

At present, participants will be recruited from California law schools, including Pepperdine, Loyola, and Southwestern, where Ms. Brundo is an alumnus. As Southwestern Law School’s Dean Austin Parrish said of the program, “The ATB Legal Institute serves as a wonderful and innovative model program for helping promising new law graduates transition into specialty areas of the law.”

Adelson, Brundo, Testan & Jimenez Continues to Be a Thought Leader with the ATB Legal Institute

Since its founding in 1996, Adelson, Brundo, Testan & Jimenez has prided itself in bringing innovation to the practice of defending workers’ compensation claims. Whether through community outreach, its continuing education library for attorneys and clients, or its ongoing seminar and event series, Adelson, Brundo, Testan & Jimenez is committed to staying actively involved in the communities they serve. The ATB Legal Institute is the most recent example of how Adelson, Brundo, Testan & Jimenez is seeking to make a difference and give back to the community.

The inaugural class of the ATB Legal Institute will shortly welcome four recent graduates to twelve weeks working with and learning from the partners and attorneys of Adelson, Brundo, Testan & Jimenez. We look forward to meeting these promising individuals, and many future classes of participants through the ATB Legal Institute. For more information, please contact Ms. Brundo at kathleenbrundo@atblaw.net.

 

 

 

Diversity Is Valued Through Inclusiveness at Adelson, Testan, Brundo & Jimenez

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Adelson, Testan, Brundo & Jimenez (ATB Law) believes in and supports diversity, not only by recognizing the value of differences between individuals, but also by supporting a culture of inclusiveness within the firm and with our clients.

We believe that any form of diversity helps strengthen an organization and community, but at ATB we take our commitment to diversity a step further and it’s reflected in our wonderful staff. Adelson, Testan, Brundo & Jimenez attorneys, associates and support staff represent a huge variety of different backgrounds and can offer services in all of the following languages:

Afrikaans

French

Korean

Spanish

Arabic

German

Mandarin

Swedish

Armenian

Greek

Marathi

Taiwanese

English

Hindi

Punjabi

Urdu

Farsi

Italian

Russian

Vietnamese

Adelson, Testan et al. also believes that diversity is more than language and culture. Diversity encompasses all backgrounds, beliefs, experiences, and worldviews. We recognize and value all different types of diversity, including that of race, sex, age, sexual orientation, and even personal interests.

One of the ways that we encourage inclusiveness for all groups is through community outreach programs and support. The organizations our firm supports are as diverse as Adopt a Fire Station, Cerritos College Women’s Soccer, and the Southern California Latvian School, just to name three of among over 100 programs to which Adelson, Testan, Brundo & Jimenez has contributed.

Adelson, Testan, Brundo & Jimenez actively supports diversity throughout our firm with our recruitment efforts and by offering internal mentoring programs and diversity trainings. This not only enhances our ability to serve clients but also enables us to connect more closely with them and with the communities in which we live and work.

Our firm embraces diversity in all of its many forms, in our office and in our communities. Adelson, Testan, Brundo & Jimenez believes that on a macro level, diversity makes the world a more enriching place for all. On a more local level, diversity strengthens the community by incorporating different ideas, viewpoints, and backgrounds. And at Adelson, Testan, Brundo & Jimenez, diversity makes us a stronger firm.

 

 

Managing Partner of Adelson, Testan, Brundo & Jimenez Appointed as Connecticut State Chair for CLM

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Congratulations to Gerald Davino II, Managing Partner of Adelson, Testan, Brundo & Jimenez‘s Rocky Hill, Connecticut office, for being selected as Committee Chair of the prestigious Claims & Litigation Management (CLM) Alliance. Mr. Davino will be helping lead and launch the Connecticut chapter by heading up membership and working together with others to help plan events in local areas in 2013.

Mr. Davino recently completed the CLM sponsored Litigation Management Institute earning him the prestigious designation of Certified Litigation Management Professional (CLMP). As Connecticut State Chair, Mr. Davino will assist in the development and growth of CLM, strengthening affiliations, fostering communications locally, and creating opportunities for participation.

CLM is a national, collaborative alliance created to promote and strengthen the highest standards of claims and litigation management by bringing together industry experts and thought leaders. CLM values having a diverse membership and is dedicated to serving all individuals and companies involved in claims and litigation management, including risk and litigation managers, insurance and claims adjusters, attorneys, risk managers, and third party vendors.

Mr. Davino joined Adelson, Testan, Brundo & Jimenez in 2005, is licensed to practice in both the state of California and Connecticut, and practices in a variety of civil litigation and workers’ compensation matters. In addition to CLM, he is also an active member of the Connecticut Bar Association and Workers’ Compensation Section, Risk & Insurance Management Society (RIMS) and the Connecticut Farmington Valley Chapter.

What is Valley Fever? Workers’ Compensation Attorney Explains the Basics

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As part of Adelson, Testan, Brundo and Jimenez’ ongoing educational seminar series, presented on ATB Law’s YouTube Channel, David Tew, managing partner at our Fresno office, covers workers’ compensation issues and defense strategies related to Valley Fever.

Valley Fever is also known as coccidiomycosis, an infection in the lungs and respiratory system caused by inhalation of Coccidioides immitis, a fungus that grows in soil in areas of the US and Central and South America. Valley Fever generally causes a temporary disability, and in its most common forms is not a cause to be unable to work. In cases where permanent disability does arise from Valley Fever, impairment can range from 0% to 100% disability, and in rarer cases may involve a death benefit.

Avenues of Workers’ Compensation Defense against Valley Fever

Valley Fever must be diagnosed through lab tests to create substantial medical evidence for a workers’ compensation claim. When deposing a worker claiming a Valley Fever injury, it’s also important to determine the symptoms, as Valley Fever’s various forms present with classic symptoms.  In addition, employees who live or visit endemic areas on a non-industrial basis will have difficulty proving industrial exposure, as will those who do not have a greater exposure than that of the general public. There are, therefore, four common avenues of defense against workers’ compensation claims involving Valley Fever:

  • If lab tests show negative results for Valley Fever but these are contradicted by a doctor’s opinion, there is a strong opportunity for defense if an exact copy of the negative lab tests is obtained.
  • Negative symptoms combined with a negative lab test are a possible avenue of defense.
  • Valley Fever can be recurring, and therefore a pre-existing condition that would not be covered under workers’ compensation.
  • Directly compare the employee’s risk of exposure to that of the general public through complete discovery and history of residence, travel, and illnesses, among other factors. If the employee’s risk was not greater than that of the public, the employee may not meet the bar of proving industrial exposure.

As one of the top workers’ compensation defense firms in the nation, Adelson, Testan, et al. is experienced in defending against all types of claims, including Valley Fever. Learn more about Valley Fever, including how it is spread, treatment options, diagnosis, complications, and further defense strategies by watching David Tew’s video seminar on Valley Fever on YouTube.

Compounding Drugs Could Create Higher Workers Compensation Liability

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Jeffrey M. Adelson, managing partner of the Santa Ana, California office of Adelson, Testan, Brundo & Jimenez, the national workers’ compensation defense firm, was recently quoted in an article on the front page of Business Insurance discussing the risks and costs associated with contaminated compound drugs in workers’ compensation cases.

Concerns over the practice of large scale compounding are rising following an outbreak of meningitis linked to a New England drug compounding company, and as Adelson noted for Business Insurance, this could have far reaching implications for employers.

How Drug Compounding Becomes a Risk

Under current regulations, in most cases compounded medication should only be manufactured to meet the customized dosage needs of individual patients via prescription when more commercially available drugs are not adequate. Exceptions would include cases of national drug shortages.

However, it appears that some pharmacies might be manufacturing compounded medication on a larger scale without prior approval by the FDA and other regulatory bodies. This appears to be the case with New England Compounding Pharmacy, Inc., the pharmacy linked to doses of injectable steroids contaminated with meningitis that have resulted in the loss of 20 lives and caused 250 confirmed meningitis cases.

Ordinarily, compounding pharmacies are not subject to the greater oversight put on large scale manufacturers of compound drugs, nor are they subject to the same price controls. This sets up the scenario in which batches of contaminated drugs are distributed, which could potentially raise the cost of a workers’ compensation claim.

Contaminated Compounds and Workers’ Comp

In his observations to Business Insurance, Adelson pointed out not only the likelihood of a workers’ compensation claimant receiving contaminated medication in large scale cases like that of the New England Compounding Pharmacy, but the ways in which this could impact the cost of workers’ compensation claims:

  • As the contaminated medication would be administered under the original workers’ compensation claim, the employer and insurer could be held liable for the additional costs to treat the health problems arising from the contamination.
  • Contamination with bacteria such as meningitis that can cause lifetime disability and even death “could turn a typical claim into a catastrophic case,” says Adelson.
  • Employers could protect themselves by subrogating under a product liability argument. Even so, the additional costs represented by taking this defense through to resolution could inflate the workers’ compensation claim.

Adelson, Testan, et al. is committed to proactively representing its clients’ litigation needs in workers’ compensation defense. We encourage our clients to ask questions about emerging issues like drug compounding and how this could impact existing and future workers’ compensation claims.

 

Sleep Deprivation in Workers’ Compensation Cases

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Michael Costello, partner at the Santa Ana office of Adelson, Testan, Brundo and Jimenez, recently contributed to ATB Law’s educational seminar series with an overview of sleep deprivation add ons in worker’s compensation cases. Sleep deprivation is not a condition, it is a symptom. The AMA Guide helps determine causes of sleep impairment, and whether it is work related. Depositions can uncover pre-existing sleep disorders to help defend against workers’ compensation claims, especially depositions with significant others. Several possible workers’ compensation defenses arise here:

  • Six month rule
  • Post termination
  • Good faith personnel action

Understanding Sleep Deprivation & Workers’ Compensation Defense Strategies

Risk factors that increase the risk of sleep deprivation include morbid obesity, smoking, and neurological disorders. Causation is critical to prove. It can be neurological, pain related, psychological in nature. The question is whether this is a direct cause or a compensable consequence arising from a claim, and defendants must ask questions to determine this.

The doctor’s report should thoroughly cover all aspects of reporting and follow the rules covered under the AMA Guide. Defendants should review medical reports for accuracy; oftentimes, the consulting doctor takes a patient’s word for the condition without a full history, and this can be defended against based on inconsistencies or incomplete data. Next, a utilization review should look at whether there are enough facts in the report to determine causation. A consult after certification will determine causation, but it is not yet time to pay for testing if the sleep deprivation is related to an underlying cause such as pain. Only after maximum medical improvement for an injury is reached should the sleep impairment be revisited to determine whether it is a compensable injury.

Any daily living impairment must be proved through a multi-sleep latency test following a polysomnogram. California’s workers compensation currently rejects impairment under solely an Epworth test as it is an informal test and not objective; Adelson, Testan, Brundo and Jimenez recommends that defendants get the raw data of the MSLT and PSG before paying for any impairment, and should not authorize MSLT and PSG based on the applicant’s or doctor’s request before MMI is reached.

Follow Adelson, Testan, Brundo and Jimenez’ YouTube Channel for more workers’ compensation defense educational seminars, or contact ATB Law to learn more.