Calif Edition Banner March 2010
Vol 1, Issue 9

Find Solutions & Strategies                              March 22, 2010

Ogilvie Rebuttals: The "Skinny" on Shini and Others
Higher standard of proof is needed for a successful DFEC rebuttal
In This Issue
* FEATURED ARTICLE: Ogilvie rebuttals
* PANEL DECISIONS: Almaraz-Guzman analysis, Unreasonable surgery, Mileage
* BLOG ROUND UP: FEHA, RICO, Long-term care
* NEWS HEADLINES: PDRS, Furloughs, SCIF ex-president
* CALIF. TOP CASES: Chavez, Coito
* LARSON'S: 50% Off Sale

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FEATURED ARTICLE: ogilvie rebuttals 
Robert Rassp
Robert G. Rassp, Esq., says that several WCAB panel decisions have issued since Ogilvie II was published on September 3, 2009, that clarify the scope and type of evidence the WCAB panels seem to require before any rebuttal of a scheduled DFEC rating is successful. These WCAB panel decisions (Shini, Noriega-Garcia, Ochoa) are not binding authority other than the law of each case but they collectively demonstrate that the WCAB panels are not simply accepting the Ogilvie formula carte blanche for a DFEC rebuttal to occur in a case. Instead, the WCAB panels are indicating that a much higher standard of proof is needed in terms of substantiality and quality of evidence in order to sustain a successful DFEC rebuttal. Read the full article
recent panel decisions - sneak preview
Check out these recent panel decisions that we're considering for the LexisNexis® services:
Permanent Disability; Rating; AMA Guides. Agreed medical evaluator's report did not constitute substantial evidence under Almaraz-Guzman to rebut 28 percent impairment under AMA Guides, when AME reported that applicant lost 50 percent of his spinal function but did not (1) provide any whole person impairment assessment, (2) state that WPI under AMA Guides was not an accurate measure of applicant's impairment, (3) state that, based upon his experience, training and skill he would find a different impairment rating, (4) depart from specific recommendations in AMA Guides and draw analogies to AMA Guides' other chapters, tables, or methods, (5) describe applicant's impairment based upon other generally acceptable medical literature or criteria, (6) assess how permanent effects of injury impaired applicant's ability to perform work activities or medical consequences of performing certain work activities, (7) explain any alternative methodology, and (8) conduct an analysis of medical findings with respect to applicant's life activities and compare results of his analysis with impairment criteria. See Lorenz panel decision.
Medical Treatment; Reasonableness and Necessity. Although defendant was not liable for costs associated with spinal surgery performed on applicant with low back injury because surgery was neither reasonable nor necessary; defendant had liability for surgery to remove hardware placed in applicant's back at time of spinal surgery based upon opinion of agreed medical evaluator that removal of hardware was reasonable and necessary to cure or relieve from effects of "ill-advised" surgery, which would not have occurred but for applicant's industrial injury. See Urrea panel decision.
Average Weekly Wage Determinations; Mileage. Mileage expenses incurred by applicant should not be included in calculating his average weekly wage for purposes determining temporary disability rate based upon Labor Code § 4454, which excludes "special expenses" from earnings calculation, when $.40 per mile paid to applicant by defendant constituted a "special expense," different from fuel expenses, and that mileage reimbursement was not intended to provide an economic advantage to applicant so as to make Labor Code § 4454 inapplicable. See Muelrath panel decision.
Fraud Sign
Workers' Comp Fraud Blotter 3/18/2010 recent arrests, charges, convictions, investigations. Vacaville man charged for double dipping.  
Goldman Magdalin Krikes
Importance of Engaging in Interactive Process Emphasized by Recent Trial Court Verdicts. Goldman, Magdalin & Krikes analyzes a recent $1.5 million jury verdict in a Northern California Federal Court, applying California's FEHA to a Tennessee Corporation doing business in California and finding that the Defendant retailer had failed to engage in the interactive process required by FEHA.
SedgwickRICO Relief Denied: Are Employers at a Tipping Point for Brown v. Cassens-Type Lawsuits? Will more RICO-based lawsuits be filed? Has the exclusive remedy doctrine been compromised? What should employers do to reduce the risk of RICO-based lawsuits? Sedgwick CMS explores these questions.
Cal Comp Cases
Cal. Comp. Cases March Advanced Postings 3/16/2010. New and further disability, apportionment, WCAB jurisdiction, expert witness fees.
CWCI Scorecard Examines Workers' Comp Claims Experience in California's Long-Term Care Industry. This scorecard offers a detailed look at work injury claims experience in the California long-term care sector - an industry that employs thousands of workers in nursing homes, homes for the aged, alcohol and drug recovery facilities and other residential care facilities across the state.
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Top 25 Blogs 2009
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news headlines
CALIFORNIA TOP CASES, powered by California Compensation Cases (updated 3/21/2010).
> Chavez v. City of Los Angeles (FEHA attorney's fees)
> Coito v. Superior Court of Stanislaus County (discovery, attorney's work product)
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