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Contribution Among Defendants: Giving Applicant a Second Bite of the Apple

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It is best practice to join the other co-defendant before settlement, in addition to reserving your right to contribution.

So, you discover a co-defendant after your very efficient defense attorney has obtained a favorable MMI report, wrangled a slightly better than reasonable settlement demand from Applicant’s attorney and set a Trial date. What should you do now?

You may be tempted to move ahead with the settlement and later join your co-defendant. After all, you’ve been made aware of the issue and plan to file your petition timely, within the statute of limitations. You decide, therefore, to settle the claim, and include language reserving your right to contribution from any party defendants during the cumulative trauma period, including but not limited to your co-defendant.

What does it mean, then, that you’ve included this language? What if co-defendant later hires counsel who argues that they would have negotiated a better deal, and that there’s no reason they should have to contribute to your Compromise and Release settlement?

The holding in Ventura v. Dana Point Cleaners provides us with a reminder that this default setting may be unfavorable to defendants. In Ventura v. Dana Point Cleaners, 2019 Cal. Wrk. Comp. P.D. LEXIS 114, party-defendant, Wasco, included language that it reserved its “right to contribution from any and all agents/ assignees/ TPAs, Insurance Co. during CT period, including but not limited to Zenith. But the WCAB held that Zenith was not yet joined, nor did the C&R Agreement resolve any claims against Zenith. The C&R Agreement therefore, had impact on Applicant’s rights against Zenith.

The Takeaway

Even when you include language in the C&R Agreement, reserving a right to contribution, the Board in Ventura v. Dana Point Cleaners found that this is not a sufficient expression of intent – if you want the Agreement to resolve all possible defendants’ interests, then it is best practice to join the other co-defendant before settlement, in addition to reserving your right to contribution.

By: Crystl Chang, Esq. – Gilson Daub, LLP’s West LA Office

The “Catastrophic Injury Exception” Is Expanded, Yet Again.

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The Appeals Board directed the focus to the nature of the injury itself, instead of the results from the injury

Since the passage of S.B. 863, the “catastrophic injury exception” found in LC § 4660.1(c)(2)(B) that bans additional PD for psychiatric injury (arising from orthopedic claims) has been a moving target. Why? Because of the little guidance about the definition of a “catastrophic injury” which is something that the en banc decision of Wilson v. State of CA Cal. Fire (2019) Cal. Wrk. Comp. LEXIS 29 aims to offer.

In Wilson, a firefighter applicant suffered severe physical injuries while fighting the Lompac May 13, 2014 wildfire. This led to a 2-week hospitalization. The psychology QME provided impairment after diagnosing Applicant with industrial PTSD and severe major depressive disorder as a result of his physical injuries.

At trial, Defendant argued that the psychiatric PD was barred under LC § 4660.1(c)(1) and the WCJ agreed. But the Appeals Board disagreed, holding that the physical injuries were, in fact, “catastrophic” under LC § 4660.1(c)(2)(B) and that the focus should be on the injury itself, requiring a fact-driven inquiry beyond the loss of a limb, paralysis, a severe burn or a severe head injuries.

The Appeals Board directed the focus to the nature of the injury itself, instead of the results from the injury, which include factors to consider outside of the statute, such as: 1) the intensity and seriousness of treatment for the injury; 2) the ultimate outcome when the employee’s physical injury is P&S; 3) the severity of the physical injury and its impact on the workers’ ADL’s; 4) whether the physical injury is closely analogous to one of the statutorily enumerated injuries; and 5) if the physical injury is an incurable and progressive disease. This list is not exhaustive, the Applicant doesn’t need to satisfy every element be met before the exception apply and Judges are free to consider other factors.

The Takeaway

Though Wilson provides some clarity on the “catastrophic injury” exception, the multiple factors and discretion afforded to the trier of fact is unlikely to reduce litigation in the long run.

By: Warren Hedstrom, Esq.- Gilson Daub’s West LA Office

The Initial Physical Aggressor Defense -When The First Blow Isn’t The Final Word.

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Defendants must always investigate the underlying facts

Though counter-intuitive, the Initial Physical Aggressor defense doesn’t always rest on Applicant striking the first blow. Instead, defense must be able to show that the employee was the first to engage in an act of physical aggression or conduct that a reasonable person would perceive to be a real, present and apparent threat of bodily harm.

In Mosley v. City of Torrance, 2019 Cal. Wrk. Comp. P.D. LEXIS 105, the WCAB held that a bus driver’s injury was not barred by the defense even though she initiated physical contact after the passenger used threatening language and ran down the aisle of the bus spraying a liquid in the applicant’s direction.

The WCAB explained that the initial physical aggressor is the person who first engages in physical conduct that a reasonable person would perceive to be a real, present and apparent threat of bodily harm as defined in a 2006 case, Los Angeles County

Metropolitan Transit Authority v. WCAB (Hicks) (2006) 71 CCC 641. The WCAB concluded that the employer did not meet the burden of proving that the bus driver was the initial physical aggressor and therefore, the bus driver was entitled to compensation for the injury.

Under LC § 3600(a)(7), an employee is barred from compensation for any injury that arises out of an altercation in which the injured employee is the initial physical aggressor. But this is a question for the trier of fact and simply relying on the first physical contact will not cut it.

The Takeaway

Defendants must always investigate the underlying facts, and what preceded the physical altercation, before relying on the defense at Trial.

By Esther Kim, Esq.- Gilson Daub LLP’s Long Beach Office

Announcing Kristi J. Robles as Gilson Daub Partner

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Gilson Daub is proud to announce the promotion of Kristi J. Robles to Partner for her work in growing our firm, leading our team, and serving our clients.

Over the past several years, Kristi has successfully managed the Gilson Daub Sacramento office, making it one of the fastest growing offices in the firm. She has developed strong relationships with Gilson Daub clients and has built an outstanding team of talented attorneys serving the Sacramento and Stockton areas. Kristi’s work has also contributed to Gilson Daub’s ongoing growth and success throughout California.

“Kristi’s addition to our partnership team makes our firm significantly stronger,” said Senior Partner, Brent Daub. “In addition to being a tremendous lawyer, Kristi is greatly admired for her character and leadership. Kristi wonderfully models the Gilson Daub core values of excellent communication, consistent quality, and exceptional character. We could not be more excited for her!”

“Kristi is a great asset to Gilson Daub. She adds value not only as a leader and friend to the Gilson Daub teams, but is also an extremely gifted litigator who is respected by her peers and the Sacramento legal community,” stated Partner, Thu Do. “We are excited to welcome Kristi as a parter to help Gilson Daub’s continued growth and success for the coming years!”, said Do.

Gilson Daub Partner, Diana Tsudik also added, “Kristi’s professionalism, litigation and leadership skills make her an obvious choice as Gilson Daub LLP’s next partner. With her background and experience she is always able to navigate the most challenging matters while serving the client’s best interest. She is a respected team member and a dedicated practitioner that I am proud to call my partner. I am very excited about Gilson Daub LLP’s future with Kristi on board.”

The partners at Gilson Daub provide a shining example of the model standard of professionalism and client-centric devotion to excellence. Kristi’s addition to the team will help Gilson Daub continue to become the firm that clients prefer and employees are proud of.

Gilson Daub is quickly becoming a nationally recognized law firm serving the insurance and business communities in the practice areas of workers’ compensation defense and subrogation recovery. Our seasoned attorneys and talented support staff place our clients first and provide innovative litigation solutions that offer the best resolution possible.

Anita Lo, Gilson Daub Employee of the Month, May 2018

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1. Who inspires you?

My beloved Mom inspires me. At 79 she was diagnosed with breast cancer, but her faith in God and desire to live carried her and our family through this trial and now she is cancer free!

 

2. What was the best concert you ever went to?

Other than my sons orchestra concerts, I would have to say Michael Jackson concert. He was an amazing performer.

 

3. Where’s your favorite place in the world?

It’s a tie between Hawaii and Verona, Italy.

 

4. If you could be any animal, which would you be?

A dolphin – they are highly intelligent, social and playful creatures.

 

5. What’s the last book you read?

The Supernatural Ways of Royalty by Bill Johnson and Kris Vallotton

 

6. What are you passionate about?

My family, especially raising my two boys to become Godly men, men of honor, compassion, and love for others.

 

7. What’s your favorite movie?

I am a sucker for romantic comedies, so my favorite is Sleepless in Seattle starring Meg Ryan and Tom Hanks.

 

8. What’s the craziest thing you’ve ever done?

Serious hard core training for the Junior National Judo competition in Saint Louis Missouri. We ran a few miles in the morning followed by group relays, pushups, sit-ups, and other exercises. Then we would come back in the evening for Judo practice. The workouts paid off-I won third place!

 

9. What are you currently watching on Netflix or TV?

I don’t have it, but I do enjoy watching the Voice.

 

10. What’s the coolest thing you’re working on right now?

I am learning how to play the Ukulele.

 

11. Who would you most like to swap places with for a day?

Jennifer Lopez.

 

12. What’s the best meal you ever had?

The Drunken Crab, it’s an entire crab simmered in a broth of three wines, pepper, and scallions from the Crustacean Restaurant in San Francisco-so delicious!

 

13. If you could visit anywhere in the world you’ve never been, where would you go?

I would love to visit Spain.

 

14. What are some of your pet peeves?

Clothes left on the floor when there’s a hamper right next to your room, and splattered toothpaste on the bathroom mirror especially when you just cleaned it.

 

15. What’s your secret talent that no one knows about?

I make the best chocolate chip peanut butter cookies.

 

16. Which four individuals, living or dead, would you like to eat dinner with the most?

Jesus, Mary mother of Jesus, Mother Teresa, and Billy Graham.

 

17. If you were a crayon, what color would you be?

Yellow.

 

18. What’s the most helpful way for you to get feedback?

I prefer clear verbal communication.

 

19. What is your favorite family tradition?

For the last 15 years, I have hosted a pre-Easter BBQ at Dohney Beach. Every year, around 80 family and friends join us and we share a meal together. My husband barbecues his famous Teriyaki chicken and everyone else brings a dish to share. We usually have 4 Easter egg hunts, play kickball, bingo and other fun outdoor games.

 

20. Who is your least favorite superhero?

The Hulk.

Danielle Cervantes, Gilson Daub Employee of the Month, July 2018

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1. Who inspires you?

My grandparents and parents, my husband and my kids.

 

2. What was the best concert you ever went to?

Billy Joel.

 

3. Where’s your favorite place in the world?

Boston, MA.

 

4. If you could be any animal, which would you be?

My Saint Bernard and Mastiff have pretty great lives, but being a killer whale might also be fun too.

 

5. What’s the last book you read?

11/22/63 by Stephen King.

 

6. What are you passionate about?

My husband/kids/family, animals and the L.A. Dodgers.

 

7. What’s your favorite movie?

Pretty in Pink

 

8. What’s the craziest thing you’ve ever done?

Sky diving (lots of times) and bungee jumping in Austria.

 

9. What are you currently watching on Netflix or TV?

I just finished The Staircase and Making A Murderer (yes, I was late to the party), The Ranch, new stand up comedy specials (and I routinely re-watch my favorite specials) and I watch Rules of Engagement constantly.

 

10. What’s the coolest thing you’re working on right now?

In my personal life, the coolest thing I am working on is raising my 2 boys (ages 11 and 8) to be good humans who respect authority, do well in school, participate in extra curricular activities and have lots of fun! At work, I am enjoying planning with Adrianna Maldonado on ways to expand our source of work to local TPAs and adjusters.

 

11. Who would you most like to swap places with for a day?

I don’t have a specific person, but whoever it is would would spend their days traveling, being with animals, eating good food and have season tickets to the Dodgers games.

 

12. What’s the best meal you ever had?

It probably is when my mother-in-law makes chicken tacos, enchiladas and refried beans.

 

13. If you could visit anywhere in the world you’ve never been, where would you go?

Rome, Italy.

 

14. What are some of your pet peeves?

I am super annoyed by people that are late (especially when they show up with a Starbucks coffee in hand), people that do not understand sarcasm, slow drivers in the fast lane and the S.F. Giants.

 

15. What’s your secret talent that no one knows about?

It is more of a stupid talent, but my semi-photographic memory enables me to remember license plate numbers from cars. I am also really good at assembling almost anything that has written instructions.

 

16. Which four individuals, living or dead, would you like to eat dinner with the most?

John F. Kennedy, Jerry Seinfeld, David Spade and Sebastian Maniscalco.

 

17. If you were a crayon, what color would you be?

Dodger Blue.

 

18. What’s the most helpful way for you to get feedback?

Direct communication, along with any examples of better ways to do things or errors I made.

 

19. What is your favorite family tradition?

Our family trip to Disneyland every January.

 

20. Who is your least favorite superhero?

All of them except Deadpool and Batman.

Caresse Lopez, Gilson Daub Employee of the Month, August 2018

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1. Who inspires you?

My amazing hard working dad!

 

2. What was the best concert you ever went to?

I have only been to one concert to my knowledge when I was kid at a fair and barely remember it ????. Concerts are not really my scene, because it is too loud for my ears or to have a conversation with the person next to you and dealing with tons of traffic.

 

3. Where’s your favorite place in the world?

Maui, I went there for a family vacation when I was a teenager and fell in love with the island, beaches and waterfalls. I wished we could have stayed longer and will definitely return one day.

 

4. If you could be any animal, which would you be?

A dolphin because they are so friendly and free to explore the ocean.

 

5. What’s the last book you read?

Daily Devotions and the Bible

 

6. What are you passionate about?

I am passionate about art and gardening.

 

7. What’s your favorite movie?

Avatar.

 

8. What’s the craziest thing you’ve ever done?

Wearing no make up for 2 weeks! Nowadays, I will actually go a couple days a week without it, since it gives my skin a break and healthier too.

 

9. What are you currently watching on Netflix or TV?

Hawaii Five-0.

 

10. What’s the coolest thing you’re working on right now?

My Blog, it is not even close to being launched yet but I am slowly working on it.

 

11. Who would you most like to swap places with for a day?

Daisy Ridley, to see what the life of an actress would be like.

 

12. What’s the best meal you ever had?

African Cuisine, it has got to be the best tasting natural spices and herbs dish I ever had. If you are ever in Anaheim stop by Kenyan Cafe and Cuisine to give it a shot!

 

13. If you could visit anywhere in the world you’ve never been, where would you go?

Africa, my best friend was born and raised in Africa half her life before being adopted here in the states. She wants me to next time go on a mission trip with her and the church.

 

14. What are some of your pet peeves?

Lack of respect for other’s opinions, pushy salespeople and telemarketers.

 

15. What’s your secret talent that no one knows about?

Patience, this is pretty important to have in today’s crazy fast pace moving society. I also have great strengths in writing, which is one of the reasons why I wanted to start a blog.

 

16. Which four individuals, living or dead, would you like to eat dinner with the most?

God, Mema (my grandma), my dad and my aunty Pam.

 

17. If you were a crayon, what color would you be?

Purple, it is my favorite color!

 

18. What’s the most helpful way for you to get feedback?

Someone who approaches me directly.

 

19. What is your favorite family tradition?

Whenever we have our family gatherings, we always break out the board games and dominos to have fun and goof off together.

 

20. Who is your least favorite superhero?

Hawkeye.

Susan Polk, Gilson Daub Employee of the Month, September 2018

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1. Who inspires you?

My inspiration comes from my children and family. They are the reason I work so hard, find humor even in the worst situations, and use every day to learn something new!

 

2. What was the best concert you ever went to?

Stagecoach Country Music Festival in Indio is by far an amazing experience with 3-days and nights sitting outside in the sun on lawn chairs listening to various artists. It has grown into an annual family event with my brothers’ families and other friends joining us.

 

3. Where’s your favorite place in the world?

Hawaii is the only place I’ve visited multiple times and could always find happiness there. But my experience in visiting Thailand this year was truly amazing and opened my eyes to another culture so far across the world with such wonderful people.

 

4. If you could be any animal, which would you be?

I’ve always loved monkeys so to swing from tree to tree for a day without fear (as I would have) would be a lot of fun!

 

5. What’s the last book you read?

Discover Your Purpose: How to Use the 5 Life Purpose Profiles to Unlock Your Hidden Potential and Live the Life You Were Meant to Live by Rhys Thomas. It’s opened my eyes to reasons why some people can’t change yet raises awareness to the ability that everyone has to change if they want to try.

 

6. What are you passionate about?

My family and my cats!

 

7. What’s your favorite movie?

I unwind and enjoy watching comedies with Will Ferrell, Adam Sandler, Jim Carrey, or Steve Carell. But I also jump at any chance to watch a chick flick including The Notebook.

 

8. What’s the craziest thing you’ve ever done?

I climbed up a 30 foot extended ladder inside my house at 5 a.m. to rescue my son’s kitten at the top. As I brought the kitten down over my shoulder, I missed one of the steps and fell breaking my wrist in multiple areas and woke up my children with the sound of the ladder crashing to the ground….but the kitten was saved!

 

9. What are you currently watching on Netflix or TV?

Scandal.

 

10. What’s the coolest thing you’re working on right now?

I am trying to become fit! My son is a Personal Trainer at 24 Hour Fitness and I have started training with him. My daughter is also training so it has been a very positive family bonding experience to work with my son in a role where he’s the boss and I can see him grow in his profession.

 

11. Who would you most like to swap places with for a day?

Taylor Swift—I’ve always wanted to sing so I’d love to have a chance to be on stage and sound good (and those of you who disagree can keep it to yourself!)

 

12. What’s the best meal you ever had?

Any Thanksgiving dinner with my family!

 

13. If you could visit anywhere in the world you’ve never been, where would you go?

Europe (so that encompasses a lot of places to visit including Italy)

 

14. What are some of your pet peeves?

Spelling errors, bad drivers, and people who treat others poorly.

 

15. What’s your secret talent that no one knows about?

I can juggle!

 

16. Which four individuals, living or dead, would you like to eat dinner with the most?

Jesus, as long as he could bring my mom and dad who both passed away when I was in my 20’s so that I could thank them for the values instilled in me and show them their grandchildren. I would also like for my grandma Beisswanger (my dad’s mom) to come as well because I realize that I am a lot like her.

 

17. If you were a crayon, what color would you be?

Royal Blue

 

18. What’s the most helpful way for you to get feedback?

I prefer direct in a non-accusatory manner and with an explanation so that I can learn.

 

19. What is your favorite family tradition?

Making homemade cinnamon rolls on Christmas Eve for Santa Claus to eat on his trip and then for my family to enjoy eating on Christmas morning!

 

20. Who is your least favorite superhero?

I would have to say Superman!

Morgan Smith, Gilson Daub Employee of the Month, October 2018

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1. Who inspires you?

Anyone that is willing to answer the call in a time of need.

 

2. What was the best concert you ever went to?

Sting/Peter Gabriel Co-headliners

 

3. Where’s your favorite place in the world?

My bed

 

4. If you could be any animal, which would you be?

A grizzly bear or bull shark or lobster.

 

5. What’s the last book you read?

Psalms.

 

6. What are you passionate about?

Finding something that I’m actually passionate about.

 

7. What’s your favorite movie?

Predator- “the body mass alone”

 

8. What’s the craziest thing you’ve ever done?

“One mans crazy is another mans sane”

But to answer the question being the only bouncer in a very crowded bar for a few years. There’s some stories there…

 

9. What are you currently watching on Netflix or TV?

People just do nothing

 

10. What’s the coolest thing you’re working on right now?

Myself

 

11. Who would you most like to swap places with for a day?

Jordan Belford in the late 80’s early 90’s, but for a year.

 

12. What’s the best meal you ever had?

Most anything my grandmother makes.

 

13. If you could visit anywhere in the world you’ve never been, where would you go?

Fiji, Belgium, Greece.

 

14. What are some of your pet peeves?

When people leave the party early and take friends away or not staying to be the 6th player for Atmosfear.

 

15. What’s your secret talent that no one knows about?

Still waiting for those to be revealed to me by a wizard or someone.

 

16. Which four individuals, living or dead, would you like to eat dinner with the most?

Jesus, Muhammad, L. Ron Hubbard, and Kayne to straighten out this whole savior thing.

 

17. If you were a crayon, what color would you be?

Aqua.

 

18. What’s the most helpful way for you to get feedback?

In a direct understandable manner.

 

19. What is your favorite family tradition?

To be honest, I really don’t have any.

 

20. Who is your least favorite superhero?

Me.

Nicholas Rosen, Gilson Daub Employee of the Month, November 2018

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1. Who inspires you?

My wife, my family, and my incredible colleagues at Gilson Daub. I am also inspired by anyone who is a master of their craft— that kind of dedication is always remarkable to witness.

 

2. What was the best concert you ever went to?

I need to preface my answer with the fact that I am an old soul, meaning my musical tastes follow suit. I love contemporary music but have a turntable in my office and house to play the old(er) stuff. The best concert I ever went to was Elton John. I hope to have that type of energy when I am in my seventies.

 

3. Where’s your favorite place in the world?

I spent my honeymoon exploring Italy and would go back in a second. Everything is breathtaking there— the food, the scenery, the atmosphere. In fact, I am trying to get Gilson Daub to open an office in Italy so I can practice workers’ compensation law there. No luck so far.

 

4. If you could be any animal, which would you be?

Either one of my spoiled dachshunds. They lead delightful lives. When they are not busy napping, they are chasing squirrels in a huge backyard. When they are not doing either one of those things, they are eating.

 

5. What’s the last book you read?

The Whistler by John Grisham.

 

6. What are you passionate about?

My family, friends, and leaving pineapples off pizza.

 

7. What’s your favorite movie?

The kid in me says Terminator II. The adult does, too.

 

8. What’s the craziest thing you’ve ever done?

I went skydiving for my thirtieth birthday. It seemed like it took hours for the rickety Cessna to climb 12,000 feet, so by the time we reached cruising altitude, I could not wait to jump out of the plane. The journey down was so much fun, I would absolutely do it again.

 

9. What are you currently watching on Netflix or TV?

Reruns of Arrested Development until the second part of Season 5 drops.

 

10. What’s the coolest thing you’re working on right now?

My wife and I bought a house last year and it came with a huge, untamed backyard. We are slowly making it our own. I am learning how to keep plants alive (for a change), and now appreciate the sheer amount of time and work that goes into constructing a large project.

 

11. Who would you most like to swap places with for a day?

I am going to refer to my answer for question #4 and say either one of my dogs.

 

12. What’s the best meal you ever had?

Hands down, the meal I had at Osteria Francescana in Modena, Italy. It is literally the world’s #1 ranked restaurant. The food was superb, and the dinner lasted close to four hours. I think they had to roll me out of the restaurant when all was said and done.

 

13. If you could visit anywhere in the world you’ve never been, where would you go?

My answer to this question changes all the time—right now, Iceland to see the Northern Lights.

 

14. What are some of your pet peeves?

Misspellings, people who text during movies, and friends who don’t use Venmo.

 

15. What’s your secret talent that no one knows about?

I never, ever get the orientation of a fitted sheet or USB cable right the first time.

 

16. Which four individuals, living or dead, would you like to eat dinner with the most?

Mark Twain, Elie Wiesel, Ben Franklin, and Robin Williams.

 

17. If you were a crayon, what color would you be?

Red.

 

18. What’s the most helpful way for you to get feedback?

Direct and immediate, preferably face-to-face or over the phone.

 

19. What is your favorite family tradition?

Growing up, a favorite family tradition was trying to figure out what my sister’s excuse would be for getting out of doing the dishes again. She is nothing if not imaginative.

 

20. Who is your least favorite superhero?

Aquaman—I just don’t see the purpose. His powers are restrained to an environment in which no person lives…except Aquaman.