Calif Edition Banner March 2010
Vol 2, Issue 2

Find Solutions & Strategies                           January 10, 2011

Coffee Mug TempWho's the Boss?
Special employment considerations and other challenging issues involving temporary workers
In This Issue
* RECENT PANEL DECISIONS: Liens, Depositions
* BLOG ROUND UP: fraud, asbestos

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals:

LexisNexis will be exhibiting at the CAAA Winter Conference in San Diego, beginning January 20, 2011. Stop by our booth and enter the raffle to win a free copy of our new Medicare Secondary Payer Compliance handbook.

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

New Blog to Watch

Blog Mouse BlueSan Diego Workers' Compensation Blog, published by The Law Office of Thomas M. DeBenedetto, hit the blogosphere on May 28, 2010. The Blog covers both state and national news. Topics include benefits, the law, settlements, work injury, neck, back and spine injuries, and carpal tunnel.

WorkCompCentral Education thumbnail

Do You Want to Become an Expert on the AMA Guides? Start Here.


January 29, 2011


Colleen CaseyRobert Rassp


Instructors: Judge Colleen Casey

& Robert G. Rassp, Esq.


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. 


Click here for details.


temporary workers
Howard StevensThe Truth About Temporaries, by Howard Stevens. Cases involving temporary workers who have been placed by a temporary employment agency at a third party location may bring some special issues and challenges for claims personnel. There are also some special legal considerations when examining the employment relationship between the parties and determining who has liability for paying Workers' Compensation benefits. > Read more.
ogilvie & the montana factors

Ogilvie twisterDon't Litigate an Ogilvie Case Without Being Familiar With the Montana Factors!  In Ogilvie v. City and County of San Francisco (2009) 74 Cal.Comp.Cases 248 (Appeals Board en banc) (Ogilvie I) and Ogilvie v. City and County of San Francisco (2009) 74 Cal.Comp.Cases 1127 (Appeals Board en banc) (Ogilvie II) the WCAB held that the diminished future earning capacity (DFEC) portion of the 2005 Schedule for Rating Permanent Disabilities is rebuttable and that the DFEC portion of the 2005 Schedule may be rebutted in a manner consistent with Labor Code section 4660 including section 4660(b)(2) and the RAND data to which section 4660(b)(2) refers. Since Ogilvie I and II, there has been a great deal of uncertainty within the Workers' Compensation community as to when and where the WCAB is going to determine that the DFEC portion of the 2005 Schedule has been rebutted.


Continued below...


Editor's Note: subscribers can link to the cases and statutes cited within this article.

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).

Liens; Interpreting Services. WCAB rescinded WCJ's finding that defendant was liable for payment of lien in amount of $2,200.00 for interpreting services provided to Spanish-speaking applicant, when lien claimant/interpreter did not meet burden of proving (1) that it reasonably provided compensable interpreting services in connection with chiropractor's evaluation and medical treatment, as there was no showing that an interpreter was present at most exams, that it was lien claimant (as opposed to another interpreter) who provided services, or that lien claimant possessed necessary qualifications at time services were provided, (2) that amount of time required for services justified amount billed, and (3) that interpreting services were reasonable or necessary for applicant's medical treatment, as treating chiropractor and his staff spoke Spanish, and indicated that no interpreters were required for non-workers' compensation patients. See Garcia panel decision. 

Depositions; Privilege Against Self-Incrimination. When applicant asserted Fifth Amendment right against self-incrimination, refused to answer deposition questions regarding possession of California driver's license, and use of other names, Social Security numbers and dates of birth, WCAB, while finding that it could not order applicant to testify in violation of her privilege against self-incrimination, determined that WCJ was prohibited from awarding applicant benefits without according defendant right to cross-examine applicant, present rebuttal evidence and defend against applicant's claim; WCAB found that, to protect both parties' constitutional rights, on remand WCJ must determine which of defendant's deposition questions were "directly relevant" to issues  presented, order applicant to answer those questions, and dismiss applicant's application if she refused to answer relevant questions. See Vargas panel decision.

BLOG ROUND UP: lexisnexis workers' comp law community
Fraud SignWorkers' Comp  Fraud Blotter 1/6/2011 - recent arrests, charges, convictions, investigations. Read it

Online VideoAsbestos Litigation Trends. What is the long-term trend in the pace of asbestos claims filings? Bradley Drew, managing director, PACE Claims Services, talks about the decrease in total filings over the last seven years, but the steady influx of mesothelioma claims. View 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

CA: Larry Mulryan Appointed Chairman of SCIF Board
> CA: Sean McNally Elected 2011 Chair Of CA CHSWC
> CA: CHSWC Releases Selected Indicators In WC: 2010 Report Card
> CA: CHSWC Releases 2010 WOSHTEP Advisory Board Annual Report
> CA: CHSWC Posts "Working Safer Or Just Working Longer?"
CA: Sue Hutchings Named Account Manager at CompPartners
CA: DWC Issues First Notice of Changes to Electronic Medical Treatment Billing, Paper Medical Billing
> CA: CHSWC Approves Report On Liens
> President Obama Signs 9/11 Health Bill
> Certain Work Characteristics Lead To Burnout, Illness
> US: DoL Agencies To Host Live Web Chats
> ASSE's 100th Anniversary Film Celebrates A Century of Safety
A.M. Best Assigns Ratings to FirstComp Insurance Company
> NCCI Study: Sharp Rise in Prescription Drugs Dispensed by Physicians
> Employers Holdings Inc. Upgraded to Neutral Rating
> Study: Return to Work Following Primary Total Knee Arthroplasty
> SUNZ Insurance Steps Up Fraud-Fighting Measures
> Dept. of Defense Adopts Reed Group's MDGuidelines for Return to Work
IWCP Identifies Eleven Workers' Comp Issues to Watch in 2011
> Frank Gates/Avizent Acquires Workers' Comp and Managed Care Organization
Insurance Journal Lists Top Workers' Comp News for 2010
> Avizent Acquires An OH WC And Managed Care Organization

job posting

Workers' Compensation Defense Attorney - Goldman, Magdalin & Krikes, LLP - Fresno, CA


Goldman, Magdalin & Krikes, LLP is a well-established, highly reputable firm specializing in the defense of workers' compensation and related matters. With 7 offices serving all venues in California, our attorneys handle full case loads, providing high-quality representation for our clients.


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Please submit your resume with salary history in Word format to Allyson Madson at [email protected].

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featured article, continued


In Olgivie II, the WCAB explained that:


"[T]he DFEC rebuttal approach that is consonant with section 4660 and the RAND data to which itrefers consists, in essence, of: (1) obtaining two sets of wage data (one for the injured employee and one for similarly situated employees), generally through the Employment Development Department (EDD); (2) doing some simple mathematical calculations with that wage data to determine the injured employee's individualized proportional earnings loss; (3) dividing the employee's whole person impairment by the proportional earnings loss to obtain a ratio; and (4) seeing if the  ratio falls within certain ranges of ratios in Table A of the 2005 Schedule. If it does, the determination of the employee's DFEC adjustment factor is simple and relates back to the Schedule. If it does not, then a non-complex formula is used to perform a few additional calculations to determine an individualized DFEC adjustment factor." 


In Ogilvie II, while affirming its earlier decision in Ogilvie I, the WCAB emphasized that "the burden of rebutting a scheduled permanent disability rating rests with the party disputing that rating," "[a]ny evidence presented to support a proposed individualized DFEC adjustment factor must constitute substantial evidence upon which the Workers' Compensation Appeals Board (WCAB) may rely" and that "even if  this rebuttal evidence is legally substantial, the WCAB, as the trier-of-fact may still determine that the evidence does not overcome the DFEC adjustment factor component of the scheduled permanent disability rating."


Consistent with Olgivie II, several recent panel cases have seemed to indicate that even where, for example, the applicant provides uncontested evidence that he lost all of his earning capacity, the analysis, at least as far the WCJ is concerned, does not end there.


In Ogilvie I the WCAB stated:


"There may be instances where it is not proper to use the injured employee's actual post-injury earnings in determining his or her proportional earnings loss. In establishing their average proportional earnings loss figures, the 2003 and 2004 RAND Studies followed three years of post-injury earnings for 241,685 employees who had sustained industrial injuries over a more than six-year period between January 1, 1991 and April 1, 1997. Given the large number of employees and the broad period of time involved in the RAND Studies, those Studies had no need to consider (and, as a practical matter, probably could not consider) factors that may have skewed the post-injury earnings of particular employees. Yet, when a proportional earnings loss calculation is made for a particular employee in a DFEC rebuttal case, the employee's post-injury earnings portion of that calculation may not accurately reflect his or her true earning capacity. As the Supreme Court stated years ago in Argonaut Ins. Co. v. Industrial Acc. Comm. (Montana) (1962) 57 Cal.2d 589 [27 Cal.Comp.Cases 130, 133] (Montana):


"An estimate of earning capacity is a prediction of what an employee's earnings would have been had he not been injured... [A] prediction [of earning capacity for purposes of permanent disability] is . . . complex because the compensation is for loss of earning power over a long span of time.. . . In making a permanent award [reliance on an injured employee's] earning history alone may be misleading... [A]ll facts relevant and helpful to making the estimate must be considered. The applicant's ability to work, his age and health, his willingness and opportunities to work, his skill and education, the general condition of the labor market, and employment opportunities for persons similarly situated are all relevant.' (Montana. supra. 57 Cal.2d at pp. 594-595 [27 Cal.Comp.Cases at p. 133] (internal citations omitted).)


"Certainly, an individual employee should not be able to manipulate the proportional earnings loss calculation through malingering or otherwise deliberately minimizing his or her post-injury earnings. Similarly, motivational or other factors may play a role in determining whether a particular employee's post-injury earnings accurately reflect his or her true post-injury earning capacity. Further, an employee may voluntarily retire or partially retire for reasons unrelated to the industrial injury. [Citations.] Temporary economic downturns or other factors may also come into play. Accordingly, the trier-of-fact may need to take a variety of factors into consideration.


"The foregoing examples, however, are merely illustrative of some instances where it might be inappropriate to use the method set out above. These examples are neither all-inclusive nor absolute. The question of whether the DFEC rebuttal method discussed above should or should not be used in any particular case must be determined on a case-by-case basis. Moreover, when the foregoing method is not appropriate, it initially will be up to the assigned WCJ to decide what alternative method might be used." (Ogilvie I, 74 Cal.Comp.Cases at pp. 275-276.)"

As the WCAB addresses an increasing number of these "Ogilvie Cases" it is becoming increasingly clear that they are not going to condone a WCJ's adoption of an alternative DFEC unless the "Montana Factors" have been carefully considered. If the applicant wants to prevail in one of these cases, the applicant is well advised to be prepared to address not only the empirical data relevant to his earning capacity, but, probably more importantly, why the decreased earning capacity reflected in the data reflect a "true post-injury earning capacity". It is submitted that unless the WCJ is able to set forth the reasons why the alternative DFEC is a truer and better reflection of applicant's post-injury earning capacity, it is unlikely the applicant will prevail on this particular issue.
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Take a deep dive into our past eNewsletters for 2011 and prior...warning - some links to articles may not any linking problems to [email protected].


January 3, 2011



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