Calif Edition Banner March 2010
Vol 2, Issue 1

Find Solutions & Strategies                             January 3, 2011

Coins DecreasePermanent Total Disability & Total Loss of Future Earning Capacity:
Recent interpretations of cases under Labor Code 4662
In This Issue
* RECENT PANEL DECISIONS: AWW, offer of alternative/modified work
* BLOG ROUND UP: fraud, CCC's, lien consolidation
* NEWS HEADLINES: AIG's $146M settlement
* JUDGES IN THE NEWS: PJ Clarke, WCJ Goldman, WCJ Greenblatt

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals:

Happy New Year! 2011 is a pivotal year for California, one of the first states in the country to adopt workers' compensation legislation. The Roseberry Act  established a voluntary system, effective September 1, 1911, which was replaced two years later with a compulsory system (see Boynton Act of 1913). How far have we come in 100 years?

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

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Colleen CaseyRobert Rassp


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Learn how to accurately calculate a rating, follow other road maps set forth in Blackledge, and ensure your PD rating will hold up in court. Other agenda topics include AMA Guide glitches, quirks, and add-ons, protocols for rating under Guzman, and strict ratings under the  Guides. 


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featured articles

The hot topic this week is cases that are based on LC 4662. Here are two articles that analyze the issues:


David Bryan LeonardWCAB Panel Concludes That 100% Loss Of Future Earning Capacity Is A Factor To Consider When Calculating Permanent Disability, by David Bryan Leonard, Esq. The panel decision of Clark Baldridge v. Swinerton, Inc./Zurich (ADJ 636377), 2010 Cal. Wrk. Comp. P.D. LEXIS 271, highlights the role of consistency in the judicial process by recognizing that while the law may change, long standing principles remain. In Baldridge, a WCAB panel was asked to determine the impact of the 2004 reforms enacted pursuant to SB 899 on the principles set forth by the California Supreme Court in LeBoeuf v. W.C.A.B. (1983) 34 Cal.3d 234 [48 Cal.Comp.Cases 587]. The subtlety of the question presented is dramatized by the seemingly overwhelming scope of the 2004 reform legislation. In a nutshell, the 2004 reform seemed to change everything. Of relevance to Baldridge, post 2004, we now have new ways to calculate the extent of permanent disability caused by an industrial injury along with new rules regarding apportionment of disability causation. > Read more.


Robert RasspBetween a Rock and a Hard Place: Permanent Total Disability Under Labor Code Section 4662, by Robert G. Rassp, Esq. The title of this article is appropriate here because if you ever represented someone who actually has an 85% to 100% permanent disability, in real life your client is between a rock and a hard place because real disabilities like these truly affect a person's quality of life and not just their ability to work....LC 4662 has recently been interpreted by the WCAB in a number of cases where the date of injury is on or after 1/1/05 or the case otherwise falls under the 2005 PDRS and WPI ratings under the AMA Guides. Section 4662 creates a conclusive presumption of permanent total disability. Up until recently there have been very few WCAB cases that fall under section 4662 and virtually no published appellate court decisions that apply the last sentence. However, the current WCAB has tackled the issue of how and when the last sentence in section 4662 can apply in a number of post SB-899 panel decisions, including a very detailed one called Boatright vs. Argonaut Construction. > Read more.


Editor's Note: eNewsletter subscribers were given access to the Gary Boatright panel decision in the Dec. 6, 2010 issue.


Editor's Note: subscribers can link to the Clark Baldridge case here. If you would like to become a subscriber, contact

featured law blog
Rassp Report
Robert RasspAnnouncing....a new law blog by Robert G. Rassp, Esq. Now you can find all of his articles in one place!  > Check it out 


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 50 to 65 noteworthy panel decisions added each month to the Lexis database, please consider purchasing our new panel decisions reporter (see below).

Average Weekly Wage; Seasonal Employees. WCAB rescinded WCJ's award of permanent disability to  applicant based on in-season earnings of $320.23 per week, contrary to pre-trial stipulation, when WCAB found that (1) there are different considerations in determining earning capacity in computing temporary disability and permanent disability, (2) although WCJ correctly utilized LC 4453(c)(4) to calculate applicant's earnings, it was improper to determine her earning capacity based only on weekly earnings during the part of the year that she worked, as if she worked yearlong with same earnings, because evidence of applicant's work history up to time of her injury did not demonstrate any willingness to work throughout the entire year, (3) applicant's choice not to work throughout the year was best evidence that her earning capacity under LC 4453(c)(4) was same as what she actually earned, and (4) based on applicant's actual earnings during  2004, 2005 and 2006, applicant was entitled to permanent disability indemnity at minimum rate of $130 per week. See Arreola panel decision.


Permanent Disability; Offers of Regular, Modified or Alternative Work. WCAB, rescinding WCJ's finding, held that defendant was not entitled to a 15 percent decrease under LC 4658(d) of 6 percent permanent disability awarded to applicant, when defendant did not provide applicant with written notice of alternative/modified work within 60 days of date his disability became permanent and stationary as required under LC 4658(d)(3)(A), and WCAB found that "substantial compliance" with 60 day period specified in LC 4658(d)(3)(A) was insufficient. See Choi panel decision.

lexisnexis workers' comp notable people - nominations

Seeking Nominations for 2010 LexisNexis Workers' Compensation Notable People awards. Nominations are being accepted for the categories of Risk Managers, Insurance Professionals, and Industry Vendors.


For details and to post a nomination on the Work Comp Analysis Group on LinkedIn, click HERE. Deadline: January 12, 2011.


Note: You must be a member of the Work Comp Analysis Group on LinkedIn to participate in this nomination process for the three categories listed above. To join the Work Comp Analysis Group on LinkedIn, click here.


LexisNexis will review all nominees and determine the finalists in the above three categories. Automated voting by members of the Work Comp Analysis Group on LinkedIn will occur during the second half of January 2011.

BLOG ROUND UP: lexisnexis workers' comp law community
Fraud SignWorkers' Comp  Fraud Blotter 12/16/2010 - recent arrests, charges, convictions, investigations. Read it


Fraud SignWorkers' Comp  Fraud Blotter 12/22/2010 - recent arrests, charges, convictions, investigations. Read it.

Fraud SignWorkers' Comp  Fraud Blotter 12/30/2010 - recent arrests, charges, convictions, investigations. Read it.

Cal Comp Cases
Cal. Comp. Cases December Advanced Postings 12/15/2010. Read it.

Cal Comp Cases
Cal. Comp. Cases December Advanced Postings 12/27/2010. Read it.
Goldman Magdalin KrikesCalifornia: Notice of Intention to Consolidate Durable Medical Equipment Withdrawn, by Goldman Magdalin & Krikes, LLP. Read it.

Goldman Magdalin KrikesPresiding Judge Jorja Frank Holds Further Hearing on Los Angeles WCAB District Office's Notice of Intent to Consolidate Interpreting Liens, by Goldman Magdalin & Krikes, LLP. Read it.

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> CA: State Fund Targets $200M In Operating Cost Savings
> CA: DWC Updates SIGs
> CA: Going And Coming Rule
> CA: DWC Posts Updated Text Versions Of Fact Sheets
> CA: CHSWC Releases Draft "Liens Report" For Public Comment
CA: Governor Reappoints Sean McNally to CHSWC
CA: Ninth Circuit Rules Last Employer Responsible for Asbestos Exposure in LHWCA Case
CA: DWC Proposes Changes to OMFS, Other Updates
WCIRB Experience Rating Sheets Available to Policyholders
CA: No Progress in Criminal Probe of State Compensation Insurance Fund
> CA: CAL/OSHA Reports Results On The Heat Illness Prevention Campaign
> CA: DWC Launches New Public Information Case Search Tool
CA: Several California Events Make Top 10 List of Insurance Stories in the West
CA: DWC Posts Ambulance Fee Schedule Inflation Factor for 2011
CA: DWC Posts Adjustment to OMFS Pathology, Clinical Laboratory Sections

> CA: New State Survey Shows Lowest Rate of 13.1 Percent Smokers
CA: Governor-elect Brown to Eliminate State Office of Inspector General
CA: Supreme Court Recuses Itself From Hearing Appeal on Sale of State Buildings
CA: Poizner Considers His Future, Confirms Ongoing Investigation of SCIF
CA: ACM Handling Zurich Workers' Comp Claims Effective 12/1/2010
CA: Corporations, Insurers, Labor Groups Back Bill to Restrict Compounded Drugs
CA: DIR Highlights New Labor Laws In The New Year
CA: Insurance Commissioner-elect Dave Jones Names His Executive Team
CA: Insurance Commissioner Urges Governor-elect Brown to Protect Workers' Comp Reforms
> ASSE President Participates In International Meeting On Work Safety
Solis Appoints 5 New Members To NACOSH
> A.M. Best Affirms Ratings of Safety National Group and Its Members
> AMA Guides: A Convoluted Story With Private Interests at Issue
Coventry Health Care Subsidiary Enters Into Settlement in PPO Class Action Suit
> Suspicious P&C Claims Rose 12 Percent in 3Q According to Report

> OpEd Piece on Spike in Social Security Disability Applications
US Congress Passes 9/11 Responder Aid, Bill Now Moves to Obama for Signature
> President Obama Signs 9/11 Health Bill
> The Hartford To Sell Specialty Risk Services To Sedgwick CMS
> Top 10 List of Insurance Stories in the West Posted by Insurance Journal
> AIG to Pay $146M in Workers' Comp Settlement for Alleged Underreporting of Premiums
> Liberty Mutual Empowers LinkedIn Professionals to Share Perspectives About Insurance Products and Services
> Reports Says Pharmaceutical Industry Biggest Defrauder of Federal Government
> NCCI Releases Reinsurance Pool Reports
> Shift Workers At Higher Risk For Injury
> Physicians Cashing in With Spinal Fusion Surgery, Studies Show Surgery Unnecessary
> Disabled Federal Workers Find Federal Employees' Compensation Act Better Than Retirement Plan

judges in the NEWS
> PJ Thomas J. Clarke of the Salinas District Office is also the Acting Assistant Chief Judge for the North.
> WCJ Barry Goldman of the Van Nuys District Office retired 12/30/2010.
> WCJ Larry M. Greenblatt (annuitant) is now with the Marina Del Rey District Office.

NPD reporter banner

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


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