Calif Edition Banner March 2010
Vol 1, Issue 36

Find Solutions & Strategies                             August 16, 2010

Ex Parte Communication Revisited
2nd DCA issues opinion on rehearing in Alvarez v. W.C.A.B.
In This Issue
* PANEL DECISIONS: Temporary Disability 104-Week Limitation; PD Rating
* PANEL DECISIONS REPORTER: $159/yr. special offer
* NEWS HEADLINES: WCIRB recommends 30% rate increase
* BLOG ROUND UP: fraud, CCCs, Rule 30, MPNs
* CALIF. TOP CASES: Collins, Alvarez
* ARCHIVES: view past eNewsletters

A Note From the Editor

Robin Kobayashi
Dear WC Professionals:
It's been a busy week for Calif. workers' comp. The WCIRB has recommended a substantial increase in workers' comp rates. Meanwhile, the 2nd DCA issued a new decision in Alvarez. We're also seeing quite a few interesting panel decisions, so be sure to subscribe to our new panel decisions reporter before the discount price expires. 
Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development
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featured article

Shaw Jacobsmeyer2nd District Modifies Holding and Disposition in Ex Parte Contact Case, by Richard Jacobsmeyer. The 2nd District Court of Appeals has issued its 2nd decision in the Alvarez v. W.C.A.B. case addressing the issue of ex parte communication with a QME/AME prohibited under Labor Code § 4062.3. In its initial decision which issued earlier this year, the appellate court had adopted a strict interpretation approach to the section, holding any ex parte contact was sufficient to trigger a finding of violation of that section and requiring issuance of a new QME panel. The court granted S.C.I.F.'s request for rehearing and has issued a new decision with much the same language but with a modified holding and a different disposition. Read more.

recent panel decisions - sneak preview
Each week we report a few recent panel decisions that we're considering for the LexisNexis® services:
NOTE: This free eNewsletter reports only a handful of panel decisions each month. If you want notification of all 40 to 65 noteworthy panel decisions added each month to the Lexis database, please consider purchasing our new panel decisions reporter (see box below).
Temporary Disability; Two-Year Limitation. Payment to applicant under LC 4600(e)(1) to compensate him for his wage loss due to attending a medical-legal QME examination was not a payment of temporary disability within meaning of LC 4656(c)(1) and therefore did not trigger commencement of 104-week limitation period set forth in LC 4656(c)(1). Read the Najjar panel decision.
Permanent Disability; Rating. WCAB rescinded WCJ's finding that applicant suffered 44% PD, and deferred issue of PD, when DEU rater who prepared formal rating disregarded impairment rating described by reporting physician based on her belief that his description of applicant's sleep/arousal impairment did not meet criteria set forth in AMA Guides, and WCAB found that, pursuant to principles set forth in Blackledge en banc opinion, rater had no authority toassess merits of physician's impairment findings, to disregard rating instructions issued by WCJ, to independently assess applicant's WPI under AMA Guides, or to prepare rating based upon her own impairment assessment. Read the Perchlak panel decision

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NEW! Designed especially for subscribers only, this monthly reporter saves you research time so that you can quickly find recent panel decisions on key topics.

Thumbs Up AUGUST ISSUE NOW IN PRODUCTION: Guest contributor James Ponzio on stress-related compensable consequence injuries. Guest contributor on the Uniformed Increasing Reduction (UIR) method for commuting permanent disability.
We do the legwork for you: Our editorial consultants pour through hundreds of cases to find noteworthy decisions that you should know about.
What you get each month: Brief summaries of typically 40 to 65 cases, arranged by topic. Commentary articles written by guest contributors.
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* Each email/web issue accessible for up to a year 
> CA: WCIRB Says 30 Point Rate Increase for Workers' Comp
> CA: "Dabblers" in Comp System Are Disappearing
> CA: CHSWC to Discuss Liens, QMEs, Modification Rating
> CA: Senate Committee Votes to Advance Bill to Rein in Costs for Compound Drugs
> CA: Amended MPN, Employee Information Rules Effective 10/8/2010
> CA: New Study Ranks California Last Place for Seventh Consecutive Year for Business-Friendly States
> CA: DWC Issues 2nd 15-Day Notice Of Revisions To Proposed WC Information System Regs
> CA: Governor Opposes Proposed 30 Percent Hike in Workers' Comp Rates
> CA: DWC Issues Second Notice of Proposed Revisions to Workers' Comp Information System Rules
> CA: Small Companies Band Together to Cut Workers' Comp Costs
> CA: DWC's Amended Medical Provider Network And Employee Information Regulations Were Approved
> CA: DWC Proposes Revision To Ambulatory Surgical Centers Fee Schedule Regulations
> EMPLOYERS' 2Q Earnings, 3Q Dividend
> Crawford & Company Posts $2.5M Loss in 2Q 2010
> WCRI: Significant Differences Exist Between State Workers' Comp Medical Fee Schedule Levels and State Medicare Rates
P2548 CA WC HotDocs
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Top 25 Blogs 2009
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Fraud SignWorkers' Comp  Fraud Blotter 8/12/2010 - recent arrests, charges, convictions, investigations. Read it.        

Cal Comp CasesCal. Comp. Cases August Advanced Postings 8/12/2010. Contribution. PD Rating. PD Schedules. Going and Coming. IMEs. Employment relationship. Read it.  

Cal Comp CasesCal. Comp. Cases July 2010 Issue. Obtain CCC cites for recent court cases, WCAB en bancs, and writ denied cases. subscribers can link to the actual cases. Read it.

Howard Stevens California: Rule 30 is Dead; Long Live the New Rule, by Howard Stephens. Read it.

Goldman Magdalin KrikesNew MPN Network Regulations, by Goldman, Magdalin & Krikes. Read it.
california top cases
Civil Actions; Apportionment of Fault; Proposition 51; Sovereign Immunity. Court of Appeal, reversing trial court's judgment, held that under Proposition 51 fault will be allocated to entity that is immune from paying for its tortious acts but will not be allocated to entity that is not tortfeasor, that is, one whose actions have been declared not to be tortious, and that U.S. Navy is properly included among those entities to which fault may be apportioned pursuant to Proposition 51, when Court of Appeal found that plaintiffs were wife and daughter of decedent, who died of mesothelioma contracted as result of workplace exposure to asbestos, that defendant Plant Insulation Co. distributed and installed asbestos-containing products with which decedent worked, that decedent's last job was as welder at Mare Island Naval Shipyard, that trial court granted plaintiffs' motion for directed verdict regarding Navy on ground that federal sovereign immunity precluded Navy from being "tortfeasor" for purpose of Proposition 51, that there was no dispute that Navy was immune from liability for plaintiffs' asbestos claims, that Proposition 51, as embodied in Civil Code § 1431.2, means that one defendant's liability for noneconomic damages cannot exceed its proportionate share of fault as compared with all fault responsible for plaintiff's injuries, not merely fault of defendants present in lawsuit, that statute neither states nor implies exception for damages attributable to fault of persons or entities who are immune from liability, that whether fault may be allocated to immune person or entity under Proposition 51 depends on whether immunity is essentially immunity from suit or whether it is based on predicate determination that conduct in question is not wrongful under law, that Navy's immunity is essentially one from suit and does not mean that it owes no duty of care to its enlisted personnel and civilian employees that would prevent it from being characterized as "tortfeasor" for purposes of Proposition 51, so that Navy is properly included among those entities to which fault may be apportioned in asbestos case. © Copyright 2010 LexisNexis. All rights reserved. See Collins v. Plant Insulation Co.

Qualified Medical Evaluators; Ex Parte Communications. Court of Appeal, annulling WCAB decision and remanding matter, held that Labor Code Sec. 4062.3(f) expressly prohibits ex parte communications with panel qualified medical evaluator, with only exception, as set forth in Labor Code Sec. 4062.3(h), being for communication by employee or deceased employee's dependent in connection with examination, but that, because certain degree of informality of workers' compensation procedures has been recognized, not every conceivable ex parte communication permits party to obtain new evaluation from another panel qualified medical evaluator, when Court of Appeal found that panel qualified medical evaluator telephoned defense counsel to request additional copy of medical records that qualified medical evaluator could not locate, that statute, contrary to WCAB's conclusion, is not limited to situation in which party initiates ex parte communication, that statute does not state that ex parte communications are permissible if subject matter is administrative or procedural rather than substantive or on merits, that prejudice, or lack thereof, is not to be considered in determining whether statute has been violated, but that ex party communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable, that Court of Appeal should not interpret or apply statutory language in manner that will lead to absurd results, that communication so peripheral to operative proceedings of case as to be insignificant should not invoke remedy under Labor Code Sec. 4062.3, and that on remand WCAB should reevaluate its conclusion based on principles Court of Appeal has discussed and not based on any distinction between "administrative" and "substantive" nature of communication or on who initiated communication. © Copyright 2010 LexisNexis. All rights reserved. See Alvarez v. W.C.A.B.

judges in the news

> Hon. Gail Babcock, Workers' Compensation Judge, Marina del Rey District Office, retired on 8/13/2010. 

enewsletter archives
Take a deep dive into our past eNewsletters for 2010...warning - some links to articles may not any linking problems to
August 9, 2010
August 2, 2010
July 12, 2010
July 6, 2010
June 28, 2010
June 21, 2010
June 14, 2010
June 1, 2010

May 24, 2010

May 17, 2010

May 10, 2010

May 3, 2010

April 26, 2010

April 19, 2010

April 12, 2010

April 5, 2010

March 29, 2010

March 22, 2010

March 15, 2010

March 8, 2010

March 1, 2010

February 22, 2010

February 16, 2010

February 9, 2010

February 2, 2010

January 26, 2010 

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