Calif Edition Banner March 2010
Vol 1, Issue 51

Find Solutions & Strategies                        November 29, 2010

Hornet Nest SwarmAttorney's Fees & Workers' Comp Medicare Set-Aside Agreements
How to stir up a hornet's nest
In This Issue
* BLOG ROUND UP: fraud, psychiatric evaluations
* NEWS HEADLINES: Schwarzenegger appointments
* JOB POSTING: Defense attorney

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals:

To All Lexis Subscribers: Be sure to purchase our panel decisions reporter at the special discounted price of $159 before the price increases on January 1st. This reporter is designed for subscribers only.

Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development

WorkCompCentral Education thumbnail

Putting the New DWC Regs

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Instructor: Judge Colleen Casey


California has enacted more than 500 new regulations in the past 18 months. Attendees will leave with valuable practice tips from a veteran workers' compensation judge and former WCAB commissioner, who is also a frequent contributor

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attorney's fees & wcmsa

Robert RasspAttorneys Fees and WCMSA - How to Stir Up a Hornet's Nest, by Robert G. Rassp. This article will make you squirm.  Here is a vexing question - can an applicant's attorney claim part of his or her attorneys fees off of workers' compensation Medicare set-aside (WCMSA) proceeds when a workers' compensation case is settled via a compromise and release?


For example, if the gross  C&R settlement is $485,000.00 and the WCMSA is $162,000.00, can the attorney claim fees of $72,750.00 which is 15% of the gross C&R amount or are the attorneys fees limited to 15% of the non-encumbered settlement proceeds of $323,000.00 or $48,450.00, a reduction in fees of $24,300.00? 

What if the gross C&R is for $200,000.00, the WCMSA is $125,000.00 and permanent disability advances are $50,000.00 by the time the WCMSA is approved by CMS and the applicant's attorney asks for $30,000.00 in attorneys fees? 


Here, $5,000.00 of the attorneys fees would have to come out of the WCMSA since there are no longer enough unencumbered funds left from which to pay the attorney.  What if the claimed work injury is denied AOE/COE? 


There are no clear answers to these questions but the problems are working their way into trial courts and WCAB panels (see, e.g., Pratt panel decision reported below). > Read more.  

pure premium rates: it's complicated

Mark Webb

Poizner's Order Rejecting Rate Hike Undermines Wall Between WCIRB's Role and Competitive Workers' Compensation Insurance Marketplace, by Mark Webb. On November 18, 2010, Insurance Commissioner Steve Poizner denied the request of the Workers' Compensation Insurance Rating Bureau (WCIRB) to increase pure premium rates in the workers' compensation system by an aggregate 27.7% over the prior approved pure premium....The Commissioner's order, however, raises far more questions than the interpretation of data and application of actuarial methodologies. > 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 below).

Attorney's Fees; Calculation; Compromise and Release Agreements. WCAB, amending WCJ's award, held that proper method for calculating a reasonable fee award for applicant/bank manager's attorney's efforts in securing compromise and release agreement settling applicant's claim for 8/29/2003 psyche injury should not include sums paid to set up and fund applicant's Medicare set-aside account (MSA), when WCAB found that applicant did not place herself in a more advantageous position by settling her medical treatment award, and that her attorney should not benefit by such settlement. See Pratt panel decision.


Petitions for Reconsideration; Caption; EAMS. WCAB found that petition for reconsideration electronically filed by lien claimants for services rendered to applicant/fabric roller with 10/17/2005 injury to lumbar spine, although timely filed, contained improper double headings, resulting in incorrect tasking and causing significant delay in processing of petition by WCJ and WCAB. See Rodriguez panel decision.

notice of correction
In the November 22, 2010 issue of this eNewsletter, we included an excerpt of the article "Attorney's Fees in a Post-COLA  World". The January 1, 2000 date in the first sentence of the article should have read January 1, 2003. We apologize for this error.
Fraud SignWorkers' Comp  Fraud Blotter 11/23/2010 - recent arrests, charges, convictions, investigations. Read it.         


Goldman Magdalin KrikesAttorney Presence at Psychiatric Evaluations, by Goldman, Magdalin & Krikes, LLP. Read it.
Take Control of Your Insurance Settlements With A Brand New Resource From LexisNexis!


Thumbs Up  "Finally, someone delivers a clear, concise reading in this area, with some definitive answers for both lawyers and claims specialists and accurate reporting dealing with MSP compliance and MSA allocations with all of the necessary resources found in one place."


- Brad Bleakney, Esq., Bleakney & Troiani. Read his complete review at Illinois Workers Compensation blog.


Thumbs Up "An excellent new book ... a one-of-a-kind resource ... [Jennifer C. Jordan's] straight-talk is much appreciated when it comes to this illusive area of the law"


- Rebecca Shafer, JD, President, Amaxx Risk Solutions, Inc.

There are many people who don't understand that the Centers for Medicare and Medicaid Services' approval process of a Medicare set-aside arrangement is voluntary and carries P1130 R12 coveran inherent cost. In fact, many of the decisions that need to be made in a settlement negotiation are risk management decisions rather than being truly Medicare Secondary Payer-oriented. Once you understand why CMS wants what it wants, you will realize that its preference may not be the only way to achieve MSP compliance. The Complete Guide to Medicare Secondary Payer Compliance, Jennifer C. Jordan, Editor-in-Chief, will help you take control of your insurance settlements. > Read more about the contents (1,350 pages). List Price: $179


> Concentra to Merge With Humana, Says Concentra CEO
Workers' Comp Time Bomb for Insurers

> CMS Posts Instructions for Reporting a WC Case, Obtaining Conditional Payment Information

judges in the news
> Judge Thomas Anthony of the Sacramento District Office retired this month.
> Judge Esther Volkan of the Sacramento District Office retired this month.

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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.


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.
How you'll get it: (1) Word document (sent via email), which allows Lexis subscribers to link directly to the WCAB decisions on; and (2) Print version, which can be stored in a binder.

View sample: Click here

What it costs: Regular price - $199/yr. Special Limited Time Offer for eNewsletter subscribers - $159 for the first year's subscription. Offer expires 12/31/2010.



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