Calif Edition Banner March 2010
Vol 2, Issue 12

Find Solutions & Strategies                              March 21, 2011

Earthquake TsunamiWorkers' Comp & Earthquakes
If someone is hurt at work during an earthquake, are they covered under California workers' comp?
In This Issue
* LETTER TO THE EDITOR: Attorney's fee
* RECENT PANEL DECISION: PD rating - hernia
* BLOG ROUND UP: fraud, CCCs
* NEWS HEADLINES: Proposed MSP legislation

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals: 


What if a homebased employee is injured during an earthquake? Are they covered by workers' comp? See a thought-provoking article by Tom Robinson, the staff writer for Larson's Workers' Compensation Law.

Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development
CSIMS Mid-Summer Seminar

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"We put the pieces together for you, now let us show you the way!"

June 16-19, 2011

Hyatt Regency Santa Clara

5101 Great American Parkway

Santa Clara CA 95054


The seminar will address cutting edge concepts regarding practice, research, and policy in the field of occupational medicine.


The California Society of Industrial Medicine and Surgery is the only organization exclusively representing the private physician practicing occupational medicine in California.


Call 800-692-4199 or visit


Documentary Premieres 3/21



Triangle: Remembering the Fire


100th Year Anniversary

The Death of 146 Garment Workers Spurred the American Labor Movement


Click here for HBO schedule



Julius Young thumbnailWhat If? Workers' Comp and Earthquakes, by Julius Young, Esq.


The video we've been seeing coming out of Japan's earthquake ravaged region is some of the most spectacularly disturbing ever seen. The Hollywood spectacles like Independence Day and Deep Impact were really on to something, as we see humankind and its constructions tossed around like crumbs. From the blog's mailbag comes a question: what about earthquakes and workers' comp? If someone is hurt at work during a California earthquake is that covered under California workers' comp? > Read more 

ex parte communication

David Bryan Leonard

IME Report Based Upon Unilateral Ex-Parte Communication Struck By Court Of Appeal -New IME Required, by David Bryan Leonard, Esq.


Physician's vulnerability to ex parte manipulation by a party is highlighted in the recent Court of Appeal Case of State Farm Insurance v. W.C.A.B. ("Pearson") 192 Cal. App. 4th 51. This is the second appellate decision to address the impact of ex-parte communication with the evaluating physician.  Like  Alvarez v. W.C.A.B. (2010) 187 Cal.App.4th 575, the court in Pearson has shown its lack of tolerance for ex-parte communication. The case of Alvarez involved oral communication.  Pearson goes one step further and specifically addresses administrative and procedural communications. > Read more  

interpreter services & liens

Shaw Jacobsmeyer NEW VERSIONInterpreters Required for Medical Treatment, by Richard M. Jacobsmeyer, Esq.


The W.C.A.B. has issued an en banc decision that addresses what has been a contentious issue for years. In Jose Guitron v. Santa Fe Extruders; and State Compensation Insurance Fund the W.C.A.B. has determined:

"1) pursuant to the employer's obligation under Labor Code section 4600 to provide medical treatment reasonably required to cure or relieve the injured worker from the effects of his or her injury, the employer is required to provide reasonably required interpreter services during medical treatment appointments for an injured worker who is unable to speak, understand, or communicate in English;

2) to recover its charges for interpreter services, the interpreter lien claimant has the burden of proving, among other things, that the services it provided were reasonably required, that the services were actually provided, that the interpreter was qualified to provide the services, and that the fees charged were reasonable." 

> Read more
letter to the editor

Scott RubelScott M. Rubel, Esq. responds to "Labor Code § 5710 - A Continuing Slippery-Slope" (published in the March 14, 2011 issue of this eNewsletter):


Dear Editor:


I am the attorney that represented Mr. Alvarez in his workers' compensation case against the Moreno Valley USD. I litigated the Depo fee trial that is the subject of the above decision. I read with interest and dismay the article posted by Neil Robinson and offer the following comments:


If the decision was "particularly vague" when describing what evidence defendant might have produced to rebut the reasonableness of the fee awarded, it seemed to me that it was and should be deliberately so. In the Alvarez decision, defendant provided absolutely NO evidence to support their contention that $275.00 per hour was unreasonable for my services at the deposition. If defendant had submitted evidence to support its contentions, then an analysis of whether that evidence was sufficient or persuasive to rebut a judge's determination of what was deemed reasonable would have been made by the trial judge. Since defendant did not, I would assume the judge felt no obligation to go further and the decision merely addressed the issues presented at trial. If the judge had speculated on what evidence could possibly have been provided to rebut the reasonableness of the fee in question, in the circumstances of this case, it would have been just that - speculation - and could actually have been construed as inappropriate, overstepping and going beyond the issues presented.> Read more

recent panel decision - sneak preview
Each week we report one or two 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).

Permanent Disability; Rating; AMA Guides. WCAB rescinded WCJ's finding that applicant/food preparer incurred 21 percent permanent disability as a result of injury to lumbar spine and in form of sleep disorder based upon treating physician's report, when WCAB found that treating physician's report did not constitute substantial evidence pursuant to Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion) (Almaraz II) and Milpitas Unified School Dist. v. W.C.A.B. (Guzman) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 76 Cal. Comp. Cases 837 to support WCJ's permanent disability rating because, although he remained within four corners of AMA Guides in applying Table 6-9 (criteria for rating permanent impairment due to herniation) in hernia chapter of AMA Guides to determine applicant's impairment, treating physician provided no explanation for why he changed applicant's spinal impairment from an 8 percent WPI as found in his initial report based on a DRE lumbar category II, to an 18 percent WPI in a subsequent report based on Table 6-9, nor did he provide any explanation as to why rating applicant's impairment under Table 6-9 in hernia chapter was more appropriate than rating it under spinal chapter of AMA Guides. See Ledesma panel decision.

BLOG ROUND UP: lexisnexis workers' comp law community
Fraud SignWorkers' Comp  Fraud Blotter 3/17/2011 - recent arrests, charges, convictions, investigations. Read it.

Cal Comp CasesCal. Comp. Cases March Advanced Postings (3/15/2011). Read it.


Cal Comp CasesCal. Comp. Cases March Advanced Postings (3/17/2011). 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  "I have a copy of Jennifer Jordan's book The Complete Guide to Medicare Secondary Payer Compliance and I am most impressed by same! I have recommended it to a number of attorneys here in Georgia."


- Richard C. Kissiah, Esq., Kissiah & Lay, Alpharetta, Georgia. 


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: Senate Committee Approves SB 104 Card Check for Unions

> CA: Standards Board Asks For Comments On Employer Duty To Pay For Safety Devices

> CA: SB 896 Would Change Payment Rate for Spinal Surgeries

> CA: AB 378 Would Remove Financial Incentive for Doctors and Prescription Drugs

> CA: California Applicants' Attorneys Association, Teamsters Affiliate

> CA: Insurance Commissioner Files Lawsuit Against Pharmaceutical Giant Bristol Meyers-Squibb

> Crawford & Company Names New Head of e-Learning Services

> Occupational Safety and Health Review Commission Addresses Time Limits for Recordkeeping Violations

> Stephen L. Purcell Sworn in as U.S. Dept. of Labor's Chief Administrative Law Judge

> H.R. 1063 Would Clarify Industry Reporting Requirements Under Medicare Secondary Payer Act

> CMS Officials Urge Insurers to Report Possible Overlaps With Medicare Payments

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:
  • Medical, Dental, Vision
  • 401(k)
  • Auto and Car Insurance Allowance
  • Annual Maintenance Allowance
  • Blackberry
  • Gym Membership

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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letter to editor, continued...

Letter At the risk of being judged immodest, I wish to note that we trial attorneys are particularly creative when it comes to procuring evidence in our cases. If the trial judge had been more specific in her discussion of evidence that might have been presented it may have been construed as limiting the evidence that may be provided on this issue. I do not think the judge would want to limit the creativity of the trial attorney in presenting their case. However, in this case, the defense attorney's idea of creative litigation was to offer absolutely no evidence on the issue in controversy thereby running afoul of the provisions of LC §5813. Deposition attorney fees under LC 5710 are clearly discretionary with the WCAB (and accordingly with each judge) and are to be considered in light of all the relevant facts and circumstances, including the skill and expertise of the attorney in question. It is up to the parties to develop their own cases and provide the court with persuasive and substantial evidence to support their positions. It is NOT up to the trial judge to tell the parties what that evidence should be.


The WCAB on reconsideration could have chosen to address the deposition attorney fee issue by writing an en banc decision or designating the case to be a significant panel decision, however they merely opted to deny reconsideration, adopting and incorporating the findings of the trial judge. Clearly, the WCAB thought the decision was adequate, since they affirmed it. The parties opted not to take the matter up on an appellate writ, so the case remains a mere panel decision, and while citable authority (particularly on issues of contemporaneous administrative construction of statutory language - see Griffith v. WCAB (1989) 54 CCC 145), it is not binding precedent. The fact that the decision was deemed "noteworthy" by the LexisNexis editorial consultants and may be of interest to the workers' compensation community is a surprise to the undersigned. However, the matter was not litigated in anticipation that it would be used for anything other than addressing the issues in the case presented for adjudication.


While this author does not believe this case should be interpreted as a call to arms for all $56 disputes, it was a welcome result in an otherwise bleak workers' compensation system. Often, applicants' attorneys are denied reasonable deposition fees merely because the defendant opines that the rate is "too high". In the future we merely ask the defendants to determine how they will prove their position before asserting it. If this defendant had offered even a shred of evidence to support their position I suspect this trial never would have taken place. Food for thought.



Scott M. Rubel
Attorney at Law

Lerner, Moore, Silva, Cunningham and Rubel
San Bernardino, CA

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

March 17, 2011 (Special Alert)
March 14, 2011

March 7, 2011

February 28, 2011
February 21, 2011
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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