Calif Edition Banner March 2010
Vol 2, Issue 8

Find Solutions & Strategies                         February 21, 2011

Caduceus greenArriving at an AMA Guides Rating
The respective roles of rater, judge, and physician
In This Issue
* RECENT PANEL DECISIONS: Contribution, Leave of absence benefits
* BLOG ROUND UP: fraud, CCCs
* NEWS HEADLINES: Premier Medical Management liens, Carrie Nevans Community Service Award recipients

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals:

I hope to see you this week at the DWC Conference in Los Angeles. Please stop by LexisNexis Booth #29 to say hello.

Our eNewsletter often links to articles on the LexisNexis Workers' Compensation Law Community site. If you haven't registered for free yet at our community site, you can enter a free raffle to win a Kindle. See box to the right to fill out a registration card. Offer  for new registrants expires March 1, 2011.

Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development
Medicare Set-Asides

Robert RasspJennifer Jordan 2

DWC's 18th Annual Educational Conference


Feb. 24-25 - Los Angeles

Feb. 28-Mar.1 - Oakland


LexisNexis authors Robert Rassp and Jennifer Jordan are presenting on Medicare Set-Asides. Learn more here


Disability Management Claims
AWCP logo

Association of Workers' Compensation Professionals
California Commission on Health and Safety and Workers' Compensation

are pleased to announce the Spring Mini-Conference

"Successfully Surviving Disability Management Claims under ADA (as amended) and FEHA"

March 11, 2011
Radisson Hotel Sacramento

Read the announcement
Register here

featured article

The Participants' Respective Roles in Arriving at an AMA Rating


Editor's Note: This article will be published in the upcoming March 2011 issue of the California WCAB Noteworthy Panel Decisions Reporter. If you're a subscriber and would like to subscribe to the reporter, please email for more information.


Labor Code Section 4660(b)(1) provides that the "nature of the physical injury or disfigurement" shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition).


In arriving at the appropriate percentage of permanent disability, the question is how exactly should the percentages of impairments published by the AMA Guides be incorporated? In other words, is the Disability Evaluation Unit Rater's job to determine what the appropriate Whole Person Impairment (WPI) is based on the findings in a particular medical report? Is it the doctor's responsibility to not only describe the objective findings but the applicable WPI? Perhaps it is the workers' compensation administrative law judge's (WCJ) job to determine the appropriate WPI?


Recently, a panel of commissioners addressed these questions. In Guadalupe Fregoso, Applicant v. Integral Design Construction, State Compensation Insurance Fund, Defendants, 2010 Cal. Wrk. Comp. P.D. LEXIS 350 [Editor's Note: subscribers can link to the case], a WCJ found applicant sustained a 35% permanent disability. Defendant contested the permanent disability rating, contending the WCJ's instructions to the disability evaluator to rate the treating physician's report without reference to the AMA Guides were improper.


Read more

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Have you registered yet at the LexisNexis Workers' Compensation Law Community? If not, registeKindler today using the form provided below and be eligible to enter our free raffle for a Kindle. The raffle is open to new registrants only. Simply fill out the registration form below and email it no later than March 1, 2011 to:


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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). 

Contribution; Date of Injury. WCAB, rescinding arbitrator's finding that applicant suffered industrial injuries on 6/26/2002, and during periods 3/26/78 to 12/30/97 and 1978 to 9/17/2002 as previously stipulated by carrier, when finding based upon stipulated dates of injury effectively denied carrier's right to contribution from other defendants, and WCAB held that carrier was not bound by its prior stipulation to dates of injury as set forth in stipulated award, that, regardless of stipulated dates of injury, determination of liability for purposes of contribution under LC 5500.5 requires a determination of dates of injurious exposure that led to  cumulative trauma, and that arbitrator improperly failed to make such determination in this case, thereby requiring that matter be remanded. See Rivera panel decision.

Temporary Disability; Leave of Absence Benefits. WCAB affirmed WCJ's finding that applicant was entitled to LC 4850 benefits for a period of temporary disability in 2009, at which time applicant was a full-time police officer, notwithstanding that applicant was a temporary police trainee (and not entitled to LC 4850 benefits) at time of 8/15/2007 industrial injuries to his cervical and lumbar spine, when WCAB found that, by its plain language, LC 4850 provides benefits for a qualifying injury based upon status of injured worker at time of disability and not at time of injury. See Haring panel decision. 

BLOG ROUND UP: lexisnexis workers' comp law community
Fraud SignWorkers' Comp  Fraud Blotter 2/18/2011 - recent arrests, charges, convictions, investigations. Read it.

Cal Comp CasesCal. Comp. Cases February Advanced Postings 2/18/2011. Read it.
Take Control of Your Insurance Settlements With A Brand New Resource From LexisNexis!


Thumbs Up  "The range of topics included in the book and updates is a beacon of wisdom in the confusing MSP compliance field."


- Tim Nay, Esq., Law Offices of Nay & Friedenberg, Portland, Oregon. Mr. Nay is a co-founder of the National Alliance of Medicare Set-Aside Professionals (NAMSAP). 


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: NorthBay Workers' Compensation Association's Annual Golf Tournament  

CA: NorthBay Workers' Compensation Association's Annual QME Seminar 

CA: AB 11 Would Give Small Businesses Some Relief From Workers' Comp Insurance Premiums

CA: Associate Chief Judge Kahn Dismisses Premier Medical Management Liens

> CA: AWCP and CHSWC to Hold Spring Conference on Disability Management 

> CA: AB 375 Would Protect Nurses in the Workplace

> CA: DWC Announces 2011 Winners Of Community Service Awards 

> CA: EMPLOYERS Recognized By CA WCRIB For Payroll Audit Performance 

CA: DWC Announces Recipients of 2011 Carrie Nevans Community Service Award

> CA: AB 378 Would Cap Compound Drug Reimbursement

CA: DWC Issues Third Notice of Revisions to Medical Billing Rules

CA: Workers' Comp Attorney Sentenced for Smuggling Heroin Into Courthouse

> OSHA Respiratory Protection Video Discusses Proper Use For Workers

> OSHA Issues Enforcement Guidance On Personal Protective Equipment

> Obama Proposes Budget Cut for DOL for FY2012, Increase for OSHA
Arthur J. Gallagher Expected to Have Flat Year in 2011

> Medicare Goes After Settlement in Wrongful Death Lawsuit

> Former NAIC President Joins Patriot National Insurance Group

> NCCI Posts Updated Analysis of Claims Frequency and Severity
> NCCI Study Reports Increase in Temporary Total Disability Indemnity Benefits

> CDC Says Deaths From Prescription Painkillers Still Rising


featured article, continued...

anchor5According to the parties' stipulations, applicant sustained an admitted injury to his neck, low back, spine and sleep disturbance. A consultative rating of applicant's treating physician's report was requested. The disability evaluator was unable to rate the report because the treating physician incorrectly used the range of motion (ROM) method to rate applicant's WPI. The rater wrote that a supplemental report that complied with the AMA Guides was needed. The treating physician prepared a supplemental report which discussed the ROM versus the Diagnosis Related Estimates (DRE) method for rating applicant's WPI and explained why he used the ROM method for the cervical spine. However, he amended his earlier rating for the lumbar spine finding a DRE Lumbar Category II 8% impairment of the whole person. The combined impairment described by the treating physician totaled 24%.


The WCJ issued rating instructions for the lumbar and cervical spine. Instead of making specific reference to the AMA Guides, the WCJ instead stated "using the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, consider the following" and then referred the disability evaluator to specific portions of the treating physician's reports and deposition where the treating physician addressed the AMA Guides.


The disability evaluator issued a rating and stated that no rating was scheduled or recommended for the disability described by the WCJ.


At the cross-examination of the disability evaluator, the WCJ amended the rating instructions to delete the phrase "using the AMA Guidesto the Evaluation of Permanent Impairment, Fifth Edition." Other than that, the instructions were not changed. The rater then issued a revised rating with a final permanent disability rating of 39%.


In addressing the appropriateness of the WCJ's rating instructions, the panel noted:

On June 3, 2010, the Appeals Board issued an en banc decision in Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613, which discussed "the respective roles of the evaluating physician, the workers' compensation administrative law judge (WCJ), and the disability evaluation specialist (rater) in determining whole person impairment (WPI) under the AMA Guides." (75 Cal.Comp.Cases at 615.) Relevant to the issues here, the role of a rater is to issue recommendations based solely upon the WCJ's formal instructions, without considering the rater's own assessment whether the WCJ's WPI ratings are consistent with the AMA Guides.


The panel continued:

Once a WCJ has prepared formal rating instructions, a rater must recommend a permanent disability rating based strictly on those instructions. If a rater's recommended rating disregards or departs from the instructions, then the WCJ may direct the rater to re-rate in accordance with the instructions."(75 Cal.Comp.Cases at 624, emphasis in original.) On cross-examination, it is apparent that the WCJ's amended instructions striking the language requiring the rater to consider the AMA Guides, was due to the fact that the rater was offering an unsolicited opinion that the instructions were not consistent with the AMA Guides, in violation of the requirements set forth in Blackledge. Dr. Wassef's explanation for his WPI rating in his reports and deposition testimony is consistent with the requirements of the AMA Guides. Hence, the actual rating was based upon the AMA Guides. Defendant is not contending that Dr. Wassef s WPI assessment is contrary to the AMA Guides, but rather that the AMA Guides were not used. However, even though the WCJ struck the language in her instructions referring to the AMA Guides, Dr. Wassef did apply the Guides and the WCJ's rating instructions were based upon Dr. Wassef's opinion. Therefore, as the rater testified, his rating followed the WCJ's formal rating instructions, the ultimate rating reached in this case is correct.


Accordingly, though the WCJ did not technically determine the precise WPI provided for by the treating physician, it was permissible for him to adopt the sections of the treating physician's reports and deposition where the treating physician described the applicable WPI. Most significantly, the panel observed that it was specifically not the role of the rater to determine whether the WCJ's instructions were consistent with the AMA Guides. Like Blackledge, this case emphasizes the importance of maintaining the respective roles of the evaluating physician, WCJ, and the rater in arriving at an appropriate permanent disability rating.


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job postings

Workers' Compensation Defense Attorney - Grancell, Lebovitz, Stander, Reubens and Thomas


Grancell, Lebovitz, Stander, Reubens and Thomas is a leading statewide law firm that has provided defense of Workers' Compensation for over 30 years. The firm is currently seeking an assertive, personable and well-organized associate with a strong work ethic for our El Segundo and Ventura offices. We require 1-3 years of experience in Workers' Comp Defense.  Excellent written and verbal communication skills are required.

  • GLSR&T offers a competitive salary plus an attractive benefits package including:
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Grancell, Lebovitz, Stander, Reubens and Thomas is an Equal Opportunity Employer.  Please send a cover letter and your resume to


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.


We are seeking an associate attorney with 5 years minimum defense experience.  Successful candidates will possess strong litigation, verbal and writing skills.  Travel to appearances is required. 


We offer a competitive salary and comprehensive benefits package including medical, dental, life, STD & LTD insurance, and matching 401k.


Please submit your resume with salary history in Word format to Allyson Madson at

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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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enewsletter archives
Take a deep dive into our past eNewsletters for 2011 and prior...warning - some links to articles may not any linking problems to

February 14, 2011
February 7, 2011
January 31, 2011

January 24, 2011 (addendum)
January 24, 2011 

January 17, 2011 

January 10, 2011 

January 3, 2011



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