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Workers' Compensation

California: Parting Advice from a Presiding Judge

Norm Delaterre, the soft-spoken presiding judge who's retiring from the Santa Ana board at the end of October, made time recently to counsel attorneys on how not to tick off Orange County judges. Speaking at an Oct. 11 continuing legal education seminar, he gave a starting point.

"Know your case," he told Orange County practicing attorneys, and "be familiar with the expert medical evidence that both support and undermine your contentions." Don't come to a MSC or expedited hearing not knowing the findings and recommendations that are contained in the medical reports, he said.

Secondly, be thoroughly familiar with the facts of the case (admitted and disputed) and with how those facts or contentions support or undermine the issues that you are trying to prove or disprove.

"Resist the temptation to focus only on those facts and documentary evidence that support your position," Delaterre said.

Thirdly, understand what evidence you must present at the WCAB to prove or disprove the disputed issues. What evidence do you have to prevail the case?

"This is very important, be sure that you understand what evidence that you might be lacking; you might want to consider settlement," Judge Delaterre emphasized.

Anaheim Presiding Judge Jamie Spitzer co-presented at the continuing legal education seminar in Anaheim, presented by Judge Spitzer will be assigned temporarily to fill the presiding judge's post at Santa Ana while a replacement for Delaterre is hired.

Have your ducks in a row, which means evidence organized and ready to present in court at the start of the 8:30 or 1:30 court sessions, Judge Delaterre said. An example of what-not-to-do is showing up for trial and asking the judge for an hour to prepare your exhibits.

An attorney who files a declaration of readiness to proceed to trial has done so prematurely if his exhibits are not properly prepared for submission to the court, the Santa Ana PJ said.

"Be sure that your exhibits are organized in the proper manner. … The day of the trial is not the time to begin organizing your exhibits," according to Judge Delaterre. Arriving to court with incomplete evidence is a waste of the court's time and puts a calendared case on the bubble.

"A premature declaration that you are ready for trial may place you in the rear of the line of cases that the judge is hearing that day, or it may result in your case being continued."

Other recommendations about preparing for trial included:

Don't push a bad position.

This goes back to knowing your evidence and whether there is reasonable basis to expect you'll prevail on select issues. If the answer is no, drop them.

"Judges do not appreciate having to hear a case where one side or the other has no hope of prevailing. Doing so is a waste of everyone’s time and it’s an abuse of the Court’s resources." The WCAB will impose sanctions for this attorney conduct, Delaterre said.

List the witnesses.

Subpoena witnesses who are needed to support your position on disputed issues, and list the witnesses on the Mandatory Settlement Conference statement. A witnesses who is not listed may be excluded from testifying.

Home health care is prescribed.

A treating physician's handwritten note for home health care can be sufficient to communicate to a claims adjuster that home health care is prescribed for an applicant. Citing two recent cases involving denied home care, Delaterre reminded attorneys that home health care is awarded as medical treatment if two conditions in Labor Code 4600(h) are met:

1. If it is reasonably required to cure or relieve the injured employee from the effects of the injury, and

2. If prescribed by a physician or surgeon. A prescription for home health care is either an oral referral, a recommendation or order for such medical treatment.

Delaterre explained that an injured worker's particular needs will determine the type of home health care. He cited a WCAB panel decision in Albert Lobo v. County of San Bernardino (ADJ7505520), which reiterates the WCAB's June 2014 En Banc Opinion in Hernandez. Albert Lobo sustained "debilitating injuries" both internal and orthopedic, and amputation of both legs, the left arm at the elbow, and fingers on the right hand were required. The AME informed the employer's claims adjuster that Mr. Lobo requires assistance for all aspects of daily living. The WCAB found that the AME's letter to the defendant about the need for home health care was a prescription under LC 4600(h).

The panel wrote in the Lobo case, "We cannot fathom how defendant's adjuster Carol Jean Story remained indifferent in face of their pleas for help." Judge Delaterre could only recall one other WCAB opinion in which a panel of commissioners chose to identify an adjuster by name. The WCAB in Lobo explained Rule 10109 that requires a reasonable and timely investigation for the information necessary to determine and provide timely each benefit.

In more catastrophic injury cases, a need may exist for round-the-clock skilled nursing care and "everything in between," the PJ said.

"The nature of (home health) care may be such that it may be rendered by the injured worker’s family/friends for a few hours a day and consist of preparation of meals, assistance in showering/bathing, driving to medical appointments and other errands," Delaterre said.

The three steps to litigating a home health care benefit are:

1. Determine whether the physician has communicated a prescription to the defendant;

2. Does substantial evidence support the rationale for the medical treatment ordered?

3. Present in court: the nature and skill of the home health care provider, and the reasonable cost of providing the home care.

Judge Delaterre ended the instructional portion of the legal-education with a personal sendoff. He said it's been a privilege to be a presiding judge at Santa Ana.

As mentioned earlier, PJ Jamie Spitzer will fill in at Santa Ana during November.

( Inc. hosts an MCLE program on Nov. 1 at the Airtel Plaza Hotel at Van Nuys Airport. Topics are medical-treatment disputes and preparing for trial, and includes discussion of Dubon II.)