On December 7, 2018, the United States Supreme Court granted Defendant’s Writ of Certiorari in the matter of DUTRA GROUP v BATTERTON. Defendant Dutra, represented by Barry Ponticello at EPS, sought to strike the punitive damages alleged by Plaintiff under the general maritime unseaworthiness action. The matter has proceeded through the Trial level and 9th Circuit Court of Appeals.
In an issue of national maritime importance, the United States Supreme Court will now decide whether seaman can pursue punitive damages under the general maritime law for a vessel’s unseaworthiness.
Halloween 2018 at EPS San Diego.
On June 21, 2018 EPS held another of it’s Morning Speaker Series events, this time a lively session centering on the topic of problem cases and difficult attorneys. Applicant counsel Phillip Cohen joined EPS for this event. Mr. Cohen, a noted and longtime San Diego practitioner, advised the assembled why injured workers seek him out, common issues he sees caused by claims administrators, why and when he seeks penalties and sanctions, as well as why some of his matters pend for such a long time. Alex Oberjuerge of EPS provided the defense view, with strategies for combatting these difficult cases and counsel. Barry Ponticello also provided some history and litigation tactics regarding these matters. As with all the Morning Speaker Series events, industry leaders were once again brought together for cutting edge discussion and food for thought.
The very questions of injury and proof were before the 9th Circuit Court of Appeals in a recently argued LHWCA matter. The matter arose as an orthopedic and pulmonary cumulative trauma claim of a decades long maritime pile driver asserted against his last maritime employer. The matter was tried over multiple days by Barry Ponticello, with an ALJ finding of no orthopedic or pulmonary injury. This decision was affirmed by the BRB.
At the 9th Circuit, the Claimant sought an alternative standard of proof in multiple employer cases, as well as differing occupational disease injury standards. Briefing opposing these theories was undertaken by Renee St.Clair and Mr. Ponticello, with Mr. Ponticello arguing the matter before the 3 judge appellate panel, who affirmed the Trial Decision.
On June 21, 2018, EPS will conduct another of its Morning Speaker Series. These events bring together leaders in the workers’ compensation, civil and maritime worlds with EPS attorneys to address the hot button issues of the day. Previously, a number of topics, including a view from the bench, AME concerns and litigation trends, AMA Guides ratings and applications, and the use and legality of Tele-Medicine have been explored.
This edition will address those difficult claims that involve allegations of sanctions, penalties, interest or other concerns, how they develop and strategies to combat and defend these scenarios.
Included amongst LexisNexis’ Top 25 “noteworthy” WCAB panel decisions for the second half of 2017 was the successful EPS matter of Gomez v. Bay Ship and Yacht (2017) 82 Cal. Comp. Cases 1531, 2017 Cal. Wrk. Comp. P.D. LEXIS 411, which was tried by Barry Ponticello at the San Francisco District WCAB, and briefed on Reconsideration by Renee St.Clair and Barry Ponticello.
This case involved multiple concurrent jurisdiction (WCAB and LHWCA)claims that resulted in resolution with the worker, but disputes as to reimbursement, contribution and last responsible employer issues amongst the Defendants. In light of the various dates of injury, liens in certain matters were asserted, with contribution claims under L.C. 5500.5 pending in others that were subject to mandatory arbitration.
The WCAB on reconsideration concurred with the EPS position that procedurally a specific injury can not be subject to mandatory arbitration, such that that any reimbursement claim stemming from a lien shall proceed at the WCAB and is in no way estopped by any ancillary contribution proceedings on other cumulative trauma dates of injury. This case again points out that those defending California concurrent jurisdiction claims must be well versed in BOTH California and LHWCA litigation issues.
Lack of such knowledge and experience presents peril, such as paying a lump sum settlement solely considering one jurisdiction without the possible effects of the other. Exclusive claims focus on one jurisdiction, or proceeding with counsel with the requisite knowledge and experience on only one of the two jurisdictions, may well come with a steep cost in California concurrent jurisdiction claims.
EPS has successfully handled concurrent jurisdiction claims for decades throughout the west coast from the Trial level through the 9th Circuit Court of Appeal and the California Courts of Appeal. For more information about the 2017 Top 25 panel matters:
In an appellate matter of significant importance to California carriers and employers, the EPS workers’ compensation subrogation team obtained a victory at the Court of Appeal, Fourth Appellate District. The Court of Appeal issued a decision reversing the Trial Judge, and vindicating the benefit provider’s rights under Labor Code Section 3856.
The Decision can be read here: http://www.courts.ca.gov/opinions/documents/G054220.PDF