Calif Edition Banner March 2010
Vol 1, Issue 11

Find Solutions & Strategies                                   April 5, 2010

WCAB Sheds More Light on Ogilvie Analysis
Applicant with 0% pre-injury earning capacity was not similarly situated to other construction workers for purposes of post-injury earnings
In This Issue
* PANEL DECISIONS: Ogilvie, Almaraz-Guzman, 132a
* FEATURED ARTICLE: Rebutting the Guides
* BLOG ROUND UP: Fraud, Cumulative trauma, Spinal implant, Health care reform, Obesity
* NATIONAL eNEWSLETTER: Sign up for free
* NEWS HEADLINES: Furloughs, CWCI board, COLA
* JUDGES IN THE NEWS: Brotman, Hjelle, Greenberg, SLO
* CALIF. TOP CASES: Seabright v. US Airways
* LARSON'S: 50% Off Sale

A Note From the Editor

Robin Kobayashi
Dear WC Professionals:
If you have feedback on our new website for the LexisNexis Workers' Comp Law Community, please email me. There are so many more things we can do with this new website compare to the old site. I look forward to hearing your suggestions.
Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development

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Permanent Disability; Rating; Diminished Future Earning Capacity. WCAB held that report of vocational expert did not constitute substantial evidence under Ogilvie II to support WCJ's determination that applicant/construction laborer with suffered 54% permanent disability and to rebut scheduled 13% permanent disability rating for applicant's injury, when expert's vocational testing, opinion and calculations did not establish individualized adjustment factor that most accurately reflected applicant's DFEC as calculations did not meet requirements of  Labor Code § 4660(b)(2) and were unsupported by applicant's actual pre-injury work history and proposed loss of post-injury earnings. See Cortez panel decision.
Permanent Disability; Rating; AMA Guides. WCAB affirmed WCJ's finding of 21% permanent disability as calculated using AMA Guides, when Guides provided a variety of options with regard to rating carpal tunnel syndrome, AME upon whose opinion WCJ relied in rating permanent disability chose to rate applicant's injury neurologically because, in AME's opinion, this method best reflected applicant's impairment, AME explained in detail how he evaluated applicant under Guides, including how he accounted for applicant's grip loss and pain, and WCAB found that AME and rater operated within four corners of AMA Guides in rating applicant's permanent disability as required under Almaraz/Guzman II. See Alvarez panel decision.

Discrimination; Labor Code § 132a. WCAB affirmed WCJ's finding of § 132a violation and found defendant failed to meet its burden of proving business necessity when there was no evidence that, although defendant had to reduce its workforce due to the economic downturn, applicant would have been one of the employees laid off if he had not been injured, defendant offered to keep applicant as an independent contractor doing the same work, this despite defendant's later claim that applicant was unable to continue doing the same work, and applicant was singled out for disadvantageous treatment when evidence showed defendant's standard layoff procedure was not used to terminate applicant, among other things. See Guerra panel decision
featured article: Rebutting the ama guides
Alex WongAlex Wong, partner with Jones, Clifford, Johnson & Johnson, analyzes the en banc decision in Almaraz/Guzman II and provides strategies for rebutting the AMA Guides. Read it
Fraud Sign
Workers' Comp Fraud Blotter 4/1/2010 recent arrests, charges, convictions, investigations. Drywall business insurance fraud. Salinas company violation of injured worker rights. Workers' comp adjuster steals $1.7M.
Cal Comp Cases
Cal. Comp. Cases March Advanced Posting 3/31/2010. Cumulative trauma, Stipulations, Permanent disability rating.
CWCI Estimates Workers' Comp Spinal Implant Pass-Through Payments Cost $55 Million in 2008.A new study shows that the so-called "spinal hardware pass-through" payments appear to have created an incentive to perform back surgery on injured workers.
Prevention in Health Reform. NIOSH Director John Howard examines the prevention provisions in the health care reform bill and the implications for workplace safety and health.
Maureen Bennington
Impact of Obesity on the Resolution of Workers' Comp Claims. Maureen Kohl Bennington, M.S., CCM, CDMS, CPUR, CRC, analyzes the challenging issues of obesity for the treatment of injured workers.
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Top 25 Blogs 2009
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AMA Guides Resource Center
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news headlines
> Presiding Judge Brotman resigned 3/26/2010 and has joined the law firm of Goldman, Magdalin & Krikes LLP
> Hon. Robert Hjelle is both Acting Presiding Judge, Oxnard District Office, and Presiding Judge, Marina Del Rey District Office
> Judge Michael Greenberg is a new judge at the Van Nuys District Office
> The Grover Beach District Office has moved to 4740 Allene Way, Suite 100, San Luis Obispo, CA, which is located on the north side of the San Luis Obispo Airport. The telephone number is 805-596-4153. The office designation is now SLO.
CALIFORNIA TOP CASES, powered by California Compensation Cases (updated 3/31/2010).
> Seabright Ins. Co. v. U.S. Airways
world health day: april 7, 2010
World Health Day 2010
April 7, 2010 is World Health Day. Events will be organized worldwide during the week of 7-11 April 2010. The global goals of the campaign are: 
  • 1000 cities: to open up public spaces to health, whether it be activities in parks, town hall meetings, clean-up campaigns, or closing off portions of streets to motorized vehicles.
  • 1000 lives: to collect 1000 stories of urban health champions who have taken action and had a significant impact on health in their cities.
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