Category

Legal News

Announcing Jesse Salazar as Gilson Daub Partner

By | Legal News | No Comments
Gilson Daub is proud to announce the promotion of Jesse Salazar to Partner for his work in growing our firm, leading our team, and serving our clients.

Jesse has been an attorney with Gilson Daub since 2014 and has developed an exceptional reputation as an aggressive and professional litigator. Mr. Salazar has recently been serving the firm as the managing attorney of the Gilson Daub Orange County and Pasadena offices. He has developed strong relationships with Gilson Daub clients and has built an outstanding team of talented attorneys. Jesse’s work has also contributed to Gilson Daub’s ongoing growth and success throughout California.

“Jesse is a highly skilled lawyer with extensive experience in workers’ compensation defense,” said Senior Partner, Brent Daub. “We congratulate Jesse on his achievements and I am confident of his continued success as he helps lead the firm as a partner.”

The partners at Gilson Daub provide a shining example of the model standard of professionalism and client-centric devotion to excellence. Jesse’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 a nationally recognized law firm serving the insurance and business communities in the practice areas of workers’ compensation defense, subrogation recovery, and general liability in California, Nevada, Hawaii, Arizona, Kansas, and Missouri. Gilson Daub’s experienced local attorneys and talented support staff place clients first and provide innovative litigation solutions that offer the best resolution possible.

Announcing Danielle Cervantes as Gilson Daub Partner

By | Legal News | No Comments
Gilson Daub is proud to announce the promotion of Danielle Cervantes to Partner for her work in growing our firm, leading our team, and serving our clients.

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

“Danielle has been serving as a leader in our firm for several years. Her addition to our partnership team makes Gilson Daub significantly stronger,” said Senior Partner, Brent Daub. “In addition to being a tremendous lawyer, Danielle is greatly admired for her character and leadership. Danielle wonderfully models the Gilson Daub core values of excellent communication, consistent quality, and exceptional character. We could not be more excited for her!”

The partners at Gilson Daub provide a shining example of the model standard of professionalism and client-centric devotion to excellence. Danielle’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 a nationally recognized law firm serving the insurance and business communities in the practice areas of workers’ compensation defense, subrogation recovery, and general liability in California, Nevada, Hawaii, Arizona, Kansas, and Missouri. Gilson Daub’s experienced local attorneys and talented support staff place clients first and provide innovative litigation solutions that offer the best resolution possible.

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

By | Legal News | No Comments
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.

By | Legal News | No Comments
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.

By | Legal News | No Comments
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