MICHAEL SULLIVAN & ASSOCIATES BLOG

Your Resource for the Latest Legal News, Combined with Insights and Recommendations from Our Attorneys

Producing Video Evidence Prior to Applicant's Deposition

Producing Video Evidence Prior to Applicant's Deposition

Video evidence is admissible in workers' compensation proceedings. Generally, it's obtained by a defendant after an applicant reports an injury and the defendant questions the applicant's credibility. This type of evidence can be called surveillance evidence or sub rosa evidence, and the parties often dispute when it must be produced.

The issue was addressed long ago in Downing v. City of Hayward (1988) 16 CWCR 76 (panel decision). In that case, the applicant's attorney objected to allowing his client's deposition because the defendant had failed to disclose whether or not it possessed surveillance films of him, and if it did, because it had failed to provide them to the attorney. Downing held that a defendant not only is not obligated to show any surveillance films prior to an applicant's deposition, but that it's also not obligated to disclose whether or not such films in fact exist. The WCAB explained:

January 2025 Rhino Round-Up

January 2025 Rhino Round-Up

It’s time for the January Rhino Round-Up!

January was a busy and exciting month for MS&A! From attending top industry conferences to hosting office meetings across our California locations, we kicked off 2025 with collaboration, learning, and connection.

If you'd like to join MS&A at one of our upcoming events, just follow us on one of our social media channels--we're on LinkedIn, Instagram, and Facebook. We'd love to have you attend one of our events!

QME Panels in Cumulative Trauma Claims Involving Multiple Defendants

QME Panels in Cumulative Trauma Claims Involving Multiple Defendants

Pursuant to Labor Code § 5500.5(a), liability for a cumulative trauma (CT) injury is limited to the employer(s) that employed the worker during the one-year period immediately preceding the date of injury (LC 5412, or the last date of injurious exposure, whichever occurs first. That means multiple employers or insurers can be liable for a CT injury.

For cases in which multiple defendants have liability for a CT claim, LC 5500.5(c) allows the applicant to elect against any one or more of them. If the applicant makes an election against a defendant, he or she is required only to prove the claim against the named defendant. Liability for the nonelected defendant isn't determined until supplemental proceedings are instituted. Only the elected defendant has complete discovery rights, and the rights of nonelected defendants are deferred to contribution proceedings.

December 2024 Rhino Round-Up

December 2024 Rhino Round-Up

It’s the December Rhino Round-Up!

Last month was filled with unforgettable events, including the annual MS&A Holiday Party, festive gatherings at our regional offices, and holiday celebrations hosted by AAWCP, EWC&R, and AWCP. A heartfelt thank you to everyone who made this season so special. Here’s to carrying this spirit of connection and collaboration into 2025!

If you'd like to join MS&A at one of our upcoming events, just follow us on one of our social media channels--we're on LinkedIn, Instagram, and Facebook. We'd love to have you attend one of our events!

Deferring Utilization Review

Deferring Utilization Review

As stated in Labor Code § 4610(a), utilization review is the process a defendant uses to "prospectively, retrospectively, or concurrently review and approve, modify, or deny, based in whole or in part on medical necessity to cure and relieve, treatment recommendations by physicians, ..." (emphasis added). UR is the process to determine only whether a request for treatment is medically necessary. It does not determine other issues.

LC 4610(l) states, "Utilization review of a treatment recommendation shall not be required while the employer is disputing liability for injury or treatment of the condition for which treatment is recommended pursuant to Section 4062." Accordingly, California Code of Regulations 9792.9.1(b) states that UR "may be deferred if the claims administrator disputes liability for either the occupational injury for which the treatment is recommended or the recommended treatment itself on grounds other than medical necessity." So a defendant is not required to submit a treatment recommendation to utilization review when a claim is denied or when it is disputing liability for reasons other than the reasonableness of the proposed care.

November 2024 Rhino Round-Up

November 2024 Rhino Round-Up

It’s the November Rhino Round-Up!

We attended inspiring industry conferences, hosted client education events, and strengthened our bonds during holiday parties and team-building activities. These moments remind us of the incredible people we work with every day—our team, clients, and community. Thank you for being part of our journey as we head into the holiday season!

If you'd like to join MS&A at one of our upcoming events, just follow us on one of our social media channels--we're on LinkedIn, Instagram, and Facebook. We'd love to have you attend one of our events!

WCAB Clarifies Roles of Physicians and Vocational Experts Under Ogilvie

WCAB Clarifies Roles of Physicians and Vocational Experts Under Ogilvie

It has long been recognized that an applicant's ability to participate in vocational retraining is a significant factor in assessing the worker's permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) In 2004, the Legislature enacted Senate Bill (SB) 899, and among the provisions was a requirement that permanent disability give consideration to an applicant's "diminished future earnings capacity," rather than the "ability to compete in the open labor market" (Labor Code § 4660(a).) The Labor Code was amended to require permanent disability to incorporate the "impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)" (LC 4660(b)). Prior to SB 899, permanent disability generally was rated based on work restrictions reported by doctors, but now, it is generally rated using impairments assigned by doctors under the AMA guides.

Highlights from PIHRA's CELU24 Conference in Irvine

Highlights from PIHRA's CELU24 Conference in Irvine

What an inspiring time at PIHRA's CELU 2024 Conference in Orange County!

Check out the highlights! MS&A’s Eric De Wames and PIHRA President Tara Fournier teamed up for the latest “Building Airplanes in Flight” session, where they explored the cutting-edge intersection of AI technology and employment law. MS&A and Lockton sponsored the post-conference happy hour, creating the perfect atmosphere to connect, unwind, and discuss the day's insights.

Thank you to everyone who attended, joined the discussion, and made this event so impactful. Here’s to more innovation and collaboration in the world of employment law!