In the case of Remedy Home Health Care, Inc. v. WCAB 61 CCC 891, the applicant requested penalties for the unreasonable delay in the payment of medical transportation costs. The facts as found by Workers’ Compensation Judge Donald M. Clark, was that the defendant waited over seven months to pay the first claim for mileage reimbursement, and over six months to pay the second claim for mileage reimbursement. The WCJ found that the delay was unreasonable. He then assessed a 10% penalty, past, present and future, over the entire medical treatment benefits. A Petition for Reconsideration was filed arguing that the species of benefits should only have been the mileage costs, not the medical costs. The Petition was denied. A Petition for Writ of Review was then filed. This was denied as well.

The Court of Appeal, in denying the Petition for Writ of Review, stated, “The penalty for unreasonable delay is computed by assessing 10% of the entire amount ultimately awarded for the particular class of benefit which has been unreasonably delayed or withheld (citation omitted). Medical treatment benefits include

Obviously, the defendants would have been much happier if the species of benefits was limited to the mileage costs. If that was the case, the 10% penalty would really be inconsequential. However, when the species of benefits relates to the entire medical class of benefits, the picture significantly changes. This is particularly true when you consider the fact that the penalty goes retroactively and prospectively.

The bottom line is that defendants must reimburse applicants on a timely basis for mileage expenses. Defendants act at their own peril when they fail to reimburse mileage expenses timely.

AME’s Finding That No Future Medical Needed Applied As Of Date Of AME report, Not As Of The P&S Date

n September 10, 1991, applicant Juan Guevara sustained an admitted injury to his back and right leg while working for Denny’s Restaurant. The parties used Dr. Robert Hunt as an AME on March 10, 1993. Dr. Hunt concluded that the applicant was P&S one year earlier on March 10, 1992. The doctor further concluded that the applicant was not in need of any future medical care.

Neurologic Orthopedic Associates (“Neuro-Ortho”) treated the applicant after the P&S date, but before Dr. Hunt’s report of March 10, 1993. That treatment began on June 11, 1992.

After the case-in-chief was resolved by C&R, Neuro-Ortho requested payment of their lien. The defendant, relying upon the AME report, refused payment. The case then went to trial on June 29, 1995 on Neuro-Ortho’s lien.

Workers’ compensation Judge Frank L. Kleeman awarded Neuro-Ortho’s lien after reduction, including the post-P&S treatment. The WCJ reasoned that the AME’s report did not address the issue of reasonableness and necessity of the medical treatment. While the AME did conclude that there was no need for future medical care, the AME did not comment upon whether the treatment which Neuro-Ortho had already provided was reasonable or necessary.

A Petition for Reconsideration was filed. This was denied. The defendant then filed a Petition for Writ of Review which was denied as well. In the Petition for Writ of Review, Neuro-Ortho asserted that neither the AME’s report, nor case law, precluded medical treatment after the P&S date.

Denny’s Restaurant v. WCAB, 61 CCC 698.

This case stands as an excellent example as to why clarification often times is a necessity with an AME’s report. The WCJ quite astutely noted that the AME’s report did not specifically address the self-procured medical treatment which was obtained after the P&S date, but before the date of Dr. Hunt’s evaluation, which was March 10, 1993. Most probably there were not any defense reports to rely upon other than an AME report. As such, the WCJ was really precluded from relying upon the AME report to dismiss Neuro-Ortho’s lien. Obviously, what was needed was a comment from Dr. Hunt as to the reasonableness and necessity of the treatment obtained after the P&S date, but before his evaluation date of March 10, 1992. This could have been obtained quite easily. It could very well have been that Dr. Hunt would have found all of the treatment unnecessary. Unfortunately for the defense, the record was not properly made.

Newlywed Financial Issues

s newlyweds, one of the first transitions you’ll probably have to make in settling in to the joys and responsibilities of married life is learning to handle your finances. This is often a major change for young couples. Consumer Finance Bulletin says the following can help:

o Sit down with your spouse and closely examine your overall finances. Openly discuss future plans and their financial ramifications.

o Establish both short- and long-term goals and set up a financial plan to help you reach them. Look at how various goals—moving to another city, purchasing a home, having children, or changing jobs—can be financed.

• Set up a realistic budget. Be sure it allows you to cover regular expenses and provides a cushion for unexpected ones. Track your budget periodically to see if it’s realistic and if your actual expenses are over the targeted amount. If you’re spending too much, look for areas in which you can easily cut back.
• Determine a regular amount you’ll put towards savings or investments. The effects of compounding can cause even small investments to increase significantly over several decades.
• Ascertain whether joint or separate checking and credit card accounts will best meet your needs. If you’re a wife who has taken her husband’s name but wants to continue using your separate account, make sure it’s listed in your new name. Be sure to track spending on your credit cards against your budget.
• Decide which of you is going to be responsible for handling what finances, e.g., balancing the checkbook, making deposits, paying bills, and making investment decisions. Usually, it’s best to split up these tasks rather than have one spouse do it all.
• Be sure to change the name on all important documents if the wife has taken the husband’s name. This includes social security cards and driver’s licenses. Not only does this allow for proper identification, but it may also be important for future benefits.
• Review health, auto, and life insurance policies. Name and marital status may have to be changed as well as the listed beneficiaries. Decide whether it is best to put your spouse as a dependent on one health insurance plan or to carry individual medical insurance.

Release In Civil Claim Also Released Workers’ Compensation Claim

hawn Boley was a construction worker. On November 8, 1992, Mr. Boley went to work at the home of his employer, Edward Kimberly. Other employees were present. Mr. Kimberly had been drinking. He began a game of Russian Roulette. Mr. Boley tried to leave the room, but Mr. Kimberly pointed the gun and shot Mr. Boley in the head. Mr. Boley died.

Mr. Boley’s widow, Dixie Boley, filed a wrongful death action against Edward and Sheryl Kimberly. The civil action ultimately settled for $500,000.00. In consideration for $500,000.00, Ms. Boley agreed to completely release and forever discharge Mr. and Mrs. Kimberly from:

“...[A]ny and all past, present, or future claims, demands, obligations, actions, causes of action, wrongful death claims rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on tort, contract, or other theory of recovery, which the Plaintiffs now have, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of, or which are the subject of the Complaint (and all related pleadings) including, without limitation, any and all known or unknown claims for bodily and person injuries to Plaintiffs, or any future wrongful death claims of Plaintiffs, representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Defendants”.

On February 4, 1994, Dixie Boley filed a claim for workers’ compensation benefits, alleging that her husband’s death occurred during the course and scope of his employment. On January 25, 1996, workers’ compensation judge Elena Jackson issued a decision that found that, “due to the all-encompassing nature of the settlement agreement signed by the applicant releasing the Kimberlys from further liability, the WCAB was without jurisdiction to make a finding or award under workers’ compensation theory”. A Petition for Reconsideration was filed. The Board granted reconsideration, but amended the award by removing its language that the WCAB was “without jurisdiction” to make a finding or award under a theory of workers’ compensation. The Board went on to include that the WCJ had reasonably interpreted the language of the settlement agreement. Specifically mentioned in the language at-issue was the phrase, “compensation of any nature whatsoever, whether based on a tort, contract, or other theory of recovery”. The WCAB was persuaded that this language was not reasonably susceptible to any meaning other than that which the WCJ attached to it.

A Petition for Writ of Review was filed. This was denied. The case is cited as Shawn P. Boley (dec’d), Dixie Boley (surviving spouse”, Shawn M. Boley, Chad P. Boley (minors) v. Workers’ Compensation Appeals Board (1996) 61 CCC 685