Are Lots More Depos Coming Due To New California Workers Comp Changes?

Pinch me.  Could this be incredibly good news for court reporters?  Let me back up quickly: every few years the California Workers Comp Appeals Board (WCAB) makes changes to the law.  Back in 2005, Governor Arnold Schwarzenegger made sweeping reforms that effectively squeezed off the flow of files down from THIS MUCH to, well, this much. Or maybe less. That's my highly scientific verbiage, like it or not.  Like a pendulum that swung very far to the right, over night there was weeping and gnashing of teeth in the Workers Comp realm.  Anecdotally, I hear of Applicant attorneys closing up shop due to the lack of viable cases. First hand, I've seen row after row of empty cubicles at formerly busy defense law firms.

The Court Reporter's Role In All Of This
As court reporters, our job is to remain neutral.  It's not our job to say whether the 2005 changes were good, bad or indifferent.  I have no idea if the injured workers out there are better or worse off.  I have no idea about whether the employer companies and insurance companies are saving on insurance premiums (the employers) and raking in the dough (the insurers).  (A cynic might have a field day with that, I am sure.)  From my court reporting agency perspective, the volume of WCAB work has declined to barely a trickle since the 2005 changes.  I'm grateful for my few defense firms that still have work.  And I'm hopeful about what's next...

The Reality About Pendulums
The inevitable reality about pendulums is that they always swing back!  And that is exactly what appears to have happened at the Appeals Board recently.  Here is the En banc decision of which I speak: http://www.dir.ca.gov/WCAB/wcab_enbanc.htm.  Actually, I was first made aware of this decision by an insurance adjuster friend of mine.  If you're not an attorney, you might find it quite tedious.  Still, he told me to take a look at the Almaraz and Guzman case.  In his opinion this case will spike the need for AMA doctor depos. Also the new language is in place that requires QMEs and AMEs to be available for depositions within 120 days.  And this is from the insurance side.

So I decided to do my own research.  I found a Workers Comp Forum thread that had some interesting quotes.  The forum thread is here: http://www.workcompforums.com/ca/pro/messageview.cfm?catid=5&threadid=5260. I pulled out the following quotes made by  defense and Applicant attorneys regarding how the Almaraz and Guzman case affects, specifically, depositions:

  • I suspect the depos will be endless
  • This will be a record year for depos
  • When the economy takes a dump, most often claims increase
  • For those in the Applicant attorney bar who thought they'd have to wait for the present Governor to leave office before the pendulum could swing back in their favor as to PD ratings, your wait is over
  • These decisions caught the vast majority of the comp community by surprise
  • But, at least in the near term, we will have a Wild West scenario where the shootout will slow this system even further, cause vast further med-legal discovery/depos, and encumber us with considerable increased litigation costs (aside from obviously increased PD ratings)
  • Unfortunately, we will first have to deal with the onslaught of both reasonable and unreasonable arguments/tactics from an applicant attorney bar, many of whom could probably not be entirely faulted if they now feel rather emboldened with a new sense of power and who have more than a little lingering resentment about being kicked around and bullied the last several years
  • This decision doesn't bother me as much as the inevitable backlash does. Also, I see endless depos
  • If I were an Applicant Attorney, I might be tempted to depo every AME ortho who did not consider grip strength. Our income will go up, but I'm not sure the worker benefits in the end
  • This will be a record year for depos. What was once airtight and compliant is now insufficient.
  • I see a lot of unpaid work by the AA's and a lot of billable hours for the DA's (depos)

Here's another quote from an attorney at Workers Comp Zone:

California workers' comp has recently experienced an earthquake-type event, the Almaraz decision  --- may be the most significant workers' comp decision in several years.
From: http://workerscompzone.com/index.php?entry=entry090208-213801

And another:

[these changes come just] ... when you thought things couldn’t get any crazier in workers’ compensation.
From: http://www.pdrater.com/2009/02/ogilvie-and-almaraz-en-banc/

The early verdict is in: the Almaraz and Guzman case seems to increase the volume of doctor depositions that will need to be scheduled.  If all this is true -- and it seems like it is -- my advice to reporters in California is to bone up on your medical dictionaries and get ready for more doctor deps!

Thoughts anyone?

 


Thursday, April 02, 2009

Author
Todd Olivas

Todd Olivas is a court reporter and entrepreneur.
He founded TO&A in 2003.

  Comment by Katy | Thursday, April 23, 2009
I`ve been doing short, late afternoon Workers` Comp doctor depos for many years. All I can say is that they`re usually pretty difficult. It`s not so much the medical jargon that you need to bone up on as it is the new Workers` Comp AMA Guides` jargon. And I would add that there are endless acronyms.


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