9th Circuit Victory for EPS

9th Circuit

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.

06-11-18-KellJa-Memorandum Affirming -Final Disposition

 

EPS Scores LexisNexis Top 25 win

Top 25 2017 Case Gomez v Bay Ship WCAB Opinion and Decision after Reconsideration

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:

https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/archive/2018/01/03/california-top-25-noteworthy-panel-decisions-july-december-2017.aspx  

and www.eps-law.com