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January 2016


All of us on the defense side felt that the decision of the First District Court of Appeals in the Dahl case had closed the door on the ability of the Applicant’s bar to obtain higher PD ratings simply by using a vocational rehabilitation counselor to establish that their client had suffered a diminished future earnings capacity, or DFEC, which was above that which had been used in creating the 2005 rating schedule.

We have, however, gotten entirely different feedback on cases we have with the Oakland firm of Boxer & Gerson, the firm which represented Doreen Dahl and whose Partner, Bert Arnold, is the current President of CAAA.

Not coincidentally, one of the first topics at CAAA’s winter 2016 convention starting January 21, 2016, will be how to get around the ruling in the Dahl case.

We’ll learn quickly what CAAA is planning. We will have correspondence at the meeting. Moreover, we have a DFEC case set for a status conference in February 2016 before WCJ Chris Miller, the WCAB judge in the Dahl case. The attorney representing the applicant in our case is a respected litigator from the Boxer & Gerson firm who has rejected any idea that Dahl applies to our case, even though that was his trial tactic until I successfully appealed.  

We are eager to learn what CAAA plans next. The pending hearing in our case will be very telling, as will be the response of Judge Miller to CAAA’s arguments.



A recent report by the California Workers’ Compensation Insurance Rating Bureau adds to the objective evidence that Southern California accounts for much of the increase in claims frequency for the entire state. Of course we “knew this all along.” The article notes that in 1991 the claims were 49.5 per 1000 workers. From that point there was a steady decline until in 2008 it was at 14.5 injuries per 1000. In 2010 indemnity claim frequency rose again. (Again, reflecting something “we knew all along” that claim frequency will rise as more people return to work.)

The returning economy is acknowledged to be one of the factors in the increase. The WCIRB report also states that inexperienced workers seem to be contributing to the increased frequency. Workers with less than two years’ experience accounted for half of the indemnity claims in 2015. A different mix of workers may account for increasing claims in Southern California. Northern California has proportionally more white-collar jobs with concomitantly fewer incidents of claims.

The increasing expense of Southern California claims was addressed in December 2015 by a Senate Committee on Labor and Industrial Relations. One witness testified concerning “bad apple” attorneys who tried to take advantage of the system. Most of us who have practiced for a while also have noted “a different, more litigious culture” in Southern California on both the applicant and defense side. Who caused this litigious culture is a “chicken or egg” problem.

There have been several articles on whether or not the proportionally higher number of minorities in the labor market in Southern California might be a part of the problem. The rationale is that these workers have less training, they are in more dangerous jobs, and they are unsophisticated about the compensation system which means that when claims are brought, they are frequently late and require more attorney involvement.

The recent article on by Elaine Goodman can be found:




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