Calif Edition Banner March 2010
Vol 2, Issue 16

Find Solutions & Strategies                                April 18, 2011

Alpha Soup CC2011 Alphabet Soup
In This Issue
* BLOG ROUND UP: fraud, CCCs
* NEWS HEADLINES: Bill on compounded drugs moves forward

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals: 


I would like to thank John W. Miller, Esq. and Robert G. Rassp, Esq. for alerting me about the signficance of the recent tax court decision on workers' comp benefits. See our article below in the right column.



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

Laughlin, Falbo, Levy & Moresi LLP and Sedgwick LLP present



A free seminar series on recent developments in employment and workers' compensation law since the passage of SB 899 in 2004, as well as return to work/interactive process obligations.


Click here for information/registration


Presentation Topics:

- Some Like it Hot: Top 10 Hot Button Employment & Labor Issues in Workers' Compensation

- Monkey Business: Stopping Fraudulent Workers in Their Tracks

- Something's Got to Give: The Spiraling Costs and Endless Litigation of Ogilvie and Almaraz et al. When Is Enough Enough?

- The Misfits: Jim Pettibone and Barry Lesch Round Up and Corral Recent Case Law


Breakfast: 8 - 8:30 a.m.

Seminar: 8:30 a.m. - 12:30 p.m.


Sacramento: Thurs., May 5, 2011

Los Angeles: Thurs., May 12, 2011

Oakland: Thurs., May 19, 2011

San Diego: Thurs., June 9, 2011

Riverside: Thurs., June 23, 2011


alphabet soup

Robert Rassp2011 Alphabet Soup: MSA, CMS, WCMSA, MSPRC, COBC, C&R, RRE, ORM, TPOC, EIEIO - The Latest in Medicare, Social Security and Your Large C&R in California, by Robert G. Rassp, Esq.


Yes, so, the last one is a joke - Old MacDonald had a farm... We have recently traveled all over the country talking about and listening to the effect CMS has had on all of the stakeholders in the entire workers' compensation community and not just in California. In this article, we want to demystify some of the misunderstandings about when you need a Medicare Set-aside arrangement and when you don't if there is a lump sum settlement. We also want to talk about the relationship between a large C&R and Social Security Disability benefits.


We will provide a checklist for you to review that covers all of the relevant issues we are facing in our cases in California. We will provide some updates on federal regulations that have been proposed to hopefully streamline the CMS approval process of set-aside arrangements. We will cover some proposed regulations in California that await final drafting and presentation to the DWC administration. > Read it

compliance in a post-eams world

Electronic PaperOn April 11, 2011, a panel of commissioners with the Workers' Compensation Appeals Board (WCAB) issued a significant panel decision in Hernandez v. AMS Staff Leasing (ADJ2182149, ADJ3329537). The WCAB panel determined that when a paper file, an electronic file in EAMS, or a combined paper and electronic file is sent to the WCAB after the filing of a petition for reconsideration, removal or disqualification, the Workers' Compensation Administrative Law Judge (WCJ) has the responsibility of ensuring that the record is organized including the identification of all exhibits, making sure all documents in the record are properly scanned into EAMS, or at a minimum placed into the paper file in proper order, no later than the point in which the file is transferred to the WCAB subsequent to the filing of one of the above mentioned petitions. > Read more subscribers can link to the cases and other citations in this article. Be sure that you're logged into your account.

taxation of workers comp benefits

1040 Tax 2

A U.S. Tax Court recently ruled that when a taxpayer's Social Security benefits were reduced by the amount of workers' compensation benefits received, that offset amount is treated as a Social Security benefit and is, therefore, taxable.


Click to read T.C. Summary Opinion 2011-44, Kevin Sherar v. Commissioner of Internal Revenue Service.


Commentary by Robert G. Rassp, Esq.:


1. It is well established that SSD benefits (and regular retirement benefits) are taxable if the household income is greater than $32,000.00.


2. I have seen the offset amounts become taxable because the IRS thinks the TTD or PD benefits substitute for what otherwise would have been SSD benefits.  This occurs in low wage cases, i.e., if the annual income is less than $30,000.00 because of the "80% Rule."

chswc study: aging workforce

An Overview of "Working Safer or Just Working Longer? The Impact of an Aging Workforce on Occupational Injury and Illness Costs" (Frank Neuhauser, Anita Mathur, and Joshua Pines, Center for the Study of Social Insurance, University of California, Berkeley)


Aging Workforce 2In a study for the California Commission on Health and Safety and Workers' Compensation (CHSWC), examining how older workers' injury frequency and costs differ from younger workers' and how these differences will affect the workers' compensation system, the authors report that the risks of occupational injury vary with gender. For example, they find that injury risk through the age of 64 declines for men, while the risk for women stays constant or increases gradually with age. Moreover, the risk of occupational injury is 20% to 50% higher for women in the same job working the same hours as men, with the difference becoming greater with age. Specifically, the injury risk is similar for workers of ages 18-24 but 50% higher for women in the 55-64 age group. > 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).

Medical Treatment--Employees Right to Control--Admissibility of Medical Reports From Provider Outside MPN--WCAB, rescinding WCJ's finding, held that medical reports issued in connection with  applicant's 2/14/2006 injuries to left knee, low back and in form of deep vein thrombosis, upon which WCJ relied in making award, were inadmissible when reports were issued by physicians outside defendant's MPN who WCAB found were invalidly designated by applicant's counsel as treating physicians, because (1) since defendant had an MPN applicant had no right under LC 4600(c) to change his treatment from prior treating physician pre-designated under  LC 4600(d) to physicians outside MPN more than 30 days after he reported his injury, (2) although applicant was entitled to medically appropriate referrals outside MPN by his pre-designated physician, referral to physician subsequently designated by counsel was not appropriate under LC 4600(d), (3) to extent 8 CCR 9780.1(d) contradicts language in LC 4600(d)(6), rule is invalid, and (4) WCAB determined that doctors appointed by counsel were not treating physicians pursuant to LC 4061, 4062 and 4062.2 and, therefore, their reports were improperly admitted into evidence and relied upon by WCJ. See Scudder panel decision.

BLOG ROUND UP: lexisnexis workers' comp law community
Fraud SignWorkers' Comp  Fraud Blotter 4/14/2011 - recent arrests, charges, convictions, investigations. Read it.

Cal Comp CasesCal. Comp. Cases March 2011 Issue. Read it. (Note: subscribers can link to the cases to read the full headnotes and summaries.)
Take Control of Your Insurance Settlements With A Brand New Resource From LexisNexis!


Thumbs Up  "Ms. Jordan and her contributors provide concise, practical analysis of the multiple layers and nuances of Medical Secondary Payer compliance. The Guide is a valuable resource for plaintiff and defense counsel, as well as insurance carriers, employers, and third party administrators."


- Ronald E. Weiss, Esq., Hamberger & Weiss, Rochester, New York. 


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: Insurance Commissioner Applauds Governor's Signing of Health Conformity Legislation.

CA: Air Ambulance Companies Lose Two Lawsuits Regarding Workers Comp Medical Provider Benefits.

CA: WCIRB Expands Online Access to Information for Brokers, Agents, Policyholders.

CA: DWC Repairs Pharmaceutical Pricing Calculator and File Downloads.

CA: Assembly Committee Approves AB 1155 Regarding Wrongful Reduction or Denial of Claims.

CA: Assembly Committee Approves AB 378 Regarding Fees for Compounded Drug Products.

CA: Assembly Committee Approves AB 584 Utilization Review Requirement That Physicians Be Licensed in California.

CA: Assembly Committee Approves AB 211 Regarding Employer Exemptions From Supplemental Job Displacement Benefit.

CA: Assembly Committee Approves AB 375 Rebuttable Presumption for Hospital Employees.

CA: Assembly Committee Approves AB 1263 Prohibitions on State Fund's Board of Directors.

Democratic Senators Introduce Legislation to Prevent Payroll Fraud, Misclassification of Workers.

Inspector General of US Postal Service Calls on Congress to Reform Federal Disability Benefits System. 

Panel Calls for Reforms of Federal Workers' Compensation Program.

CMS Town Hall 4/6/2011 on NGHP Reporting Under MMSEA Section 111 Creates More Confusion, Controversy.

Health Care Reform's Potential Impact to Pose Challenges for Workers Comp, Medical Liability Insurers. 

President Obama Signs Repeal of 1099 Reporting Provision in Health Care Reform Bill.

Majestic Capital Delays Annual Report to SEC, Expects California Dept of Insurance to Take Action Against It.  

Progressive Medical Releases White Paper on Workers Comp Narcotics Abuse.

New Study Released on Dairy Worker Health and Safety Risks.

Workers Comp Sitcom Pilot Begins Shooting.

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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
Order now: Contact [email protected] 
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eams, continued...

eamsThe panel, emphasizing the continuing applicable of Hamilton v. Lockheed Corporation (2001) 66 Cal. Comp. Cases 473, in a post-EAMS world stated:


"Although Hamilton involved a record that was created and maintained in paper format, Hamilton's explanation of the responsibilities of the parties and the WCJ, and the needs of the parties and the Appeals Board, applies equally to a record created and maintained in an electronic format. As indicated above, Hamilton requires the record to contain the issues submitted for decision, the admissions and stipulations of the parties, and the admitted evidence... Moreover, the incorporation of a Minutes of Hearing form in Court Administrator Rule 10245 (Cal. Code Regs., tit. 8. § 10245) does not relieve a WCJ of the responsibilities set forth in Hamilton, Labor Code section 5313, and WCAB Rule 10566."


Acknowledging some of the challenges facing a number of district offices in timely scanning documents into EAMS, the panel also noted:


"We are aware that many district offices have problems scanning documents into EAMS in a consistently accurate and timely manner. Undoubtedly, the hiring freeze and mandatory furloughs of state employees have contributed to the backlogs. However, the challenges posed by the transition to EAMS do not alter the fundamental tasks and responsibilities of the Appeals Board as a reviewing court. If a full and up-to-date record is not available for our examination, we cannot render a proper decision as to the correctness of a WCJ's decision. While there are very real problems causing system-wide backlogs, these problems do not excuse the WCJ or the litigants from ensuring that a complete and properly organized record is available to the Appeals Board."


At the end of the day, this decision should not come as a surprise to anybody. There is simply no possible way the WCAB can effectively perform the critical job of reviewing the decisions rendered by the WCJs from the numerous district offices from around the state if the WCAB is not provided with a complete and accurate record of the proceedings below it. Conscientious compliance with the principles set forth in Hamilton, supra, has become even more critical in a post-EAMS world.


© Copyright 2011 LexisNexis. All rights reserved. 


Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates or by the LexisNexis® editorial consultants who review panel decisions.

aging workforce, continued...

agingThe authors write that the duration of disability increases steadily with age but that women have slightly shorter durations of disability than men.


Regarding the large increases of the fraction of workers over the age of 55 in the last decade and projected in the coming decades, the authors find that the impact on workers' compensation costs will be "modest," likely to amount to around 2% of those costs in 2030 above the cost if the distribution of workers by age had remained the same as it was in 2000.


According to the authors, the most immediate issue facing employers and insurers is the impact of an aging workforce on Medicare's efforts to recover medical treatment costs from the workers' compensation system. They write that workers' compensation Medicare set-asides (WCMSAs) for older workers eligible or nearly eligible for Medicare have increased from $180 million in 2004 to $950 million in 2008, an increase from 1% to 4% of workers' compensation medical payments. They predict that this percentage will exceed 8-10% by 2020.


Moreover, they find evidence that under-reporting of occupational conditions, an issue with regard to workers of all ages, becomes substantially more severe among older workers eligible for Medicare. If this situation persists, Medicare will be subsidizing roughly 5%-7% of workers' compensation medical costs by 2020.


The study offers several suggestions for future research, focusing on the higher injury rates for women in the same occupations as men, with particular attention to women's elevated risk with age, and on the under-reporting of occupational conditions among workers over the age of 64. Finally, the authors suggest that CHSWC might take the lead, via conferences or roundtable discussions, to identify efficient solutions to the overlap between workers' compensation and Medicare. They note that WCMSAs and "some solutions" for the under-reporting issue are likely to be extremely expensive means of resolving the issues, whereas, with CHSWC leading the way, more efficient solutions may be found that actually reduce employers' costs.


Access the report here.

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 [email protected].

April 11, 2011 (Special Alert)

April 11, 2011

April 4, 2011

March 28, 2011

March 21, 2011

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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