LexisNexis Workers' Compensation eNewsletter

Vol 2, Issue 17

Find Solutions & Strategies April 25, 2011

Non-MPN Physician Reports

WCAB en banc holds such reports are not admissible on issues of medical treatment or eligibility for compensation

In This Issue

* NON-MPN PHYSICIAN REPORTS

* WHAT ARE SPDs?

* RECENT PANEL DECISION: Sanctions

* BLOG ROUND UP: CCCs

* MSP COMPLIANCE BOOK

* NEWS HEADLINES: Calif. WC insurers net worth decline

* JUDGES IN THE NEWS: Davis, Udkovich

* PANEL DECISIONS REPORTER

* eNEWSLETTER ARCHIVES

A Note From the Editor

Dear WC Professionals:

In this issue we report a WCAB en banc decision, a WCAB significant panel decision (SPD), and a WCAB "noteworthy" panel decision (NPD). What's the difference between an "SPD" and an "NPD"? Click here to find out.

Sincerely,

Robin E. Kobayashi, J.D.

LexisNexis Editorial & Content Development

robin.e.kobayashi@lexisnexis.com

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

THE SEVEN-YEAR ITCH

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

wcab en banc decision

W.C.A.B. Rules Non MPN Physician Reports Not Admissible, by Richard Jacobsmeyer, Esq.

In a split vote en banc decision, the W.C.A.B. has issued a comprehensive decision addressing one of the issues that have been floating around since the implementation of Medical Provider Networks in 2004. In Valdez v. Demo Warehouse the W.C.A.B. held such reports are not admissible either on issues of medical treatment or on those involving compensation. > Read more.

significant panel decisions

California: What are SPDs? by Judge Colleen Casey.

When the WCAB issued "significant panel decision (SPD)," Hernandez v. AMS Staff Leasing, (2011) 76 CCC -- on April 11, 2011, many practitioners wondered, "What in the world is a 'significant panel decision (SPD)'?"

History of the "significant panel decision":The practice of issuing WCAB significant panel decisions (SPD) began in July 1997, when the WCAB commissioners created a hybrid decision that was part en banc and part regular panel decision. In an open letter to the legal community, WCAB Chair Diana Marshall explained the selection criteria. The WCAB would designate certain cases as SPDs because they dealt with significant legal issues about which there is little or no published case law. (See full letter in 25 CWCR 197.) > 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).

Sanctions--WCAB found that defendant and its counsel were entitled to recover costs and attorney's fees from lien claimant and lien claimant's hearing representative, jointly and severally, and that lien claimant's hearing representative was liable for sanctions pursuant to Labor Code � 5813 and 8 Cal. Code Regs. � 10561 for bad faith actions including filing of frivolous pleadings and missed appearances, but reduced WCJ's award of $46,891.38 in costs and fees by $2,721.57 for a total fee award of $44,169.81, and reduced sanctions against hearing representative from $3,500 to $1,000, when it found that $500 sanction awarded by WCJ for frivolous petition for removal following compromise and release was not warranted, and when it exercised its discretion not to impose sanctions for hearing representative's ex parte appearances before defendant school board, notwithstanding that it found appearances to be inappropriate and inconsistent with good faith representative of lien claimant. See Santangelo panel decision.

BLOG ROUND UP: lexisnexis workers' comp law community

Cal. Comp. Cases April Advanced Postings (4/20/2011). Read it. (Lexis.com subscribers can link to the cases to read the complete headnotes and summaries.)

P884 thumbnail The Last Samurai - Fukushima Daiichi Nuclear Plant Workers Sacrifice Their Lives: An Occupational Medicine Overview of Radiation Exposure and Acute Radiation Syndrome, posted by Robin Kobayashi. Read it.

HOW TO ACHIEVE MEDICARE SECONDARY PAYER COMPLIANCe

Take Control of Your Insurance Settlements With A Brand New Resource From LexisNexis!

"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.

"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).

"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.

"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.

"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 cover

an 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

Contact Robin.E.Kobayashi@lexisnexis.com.

NEWS HEADLINES

CA: OAL Approves New DWC Rules for Electronic and Standardized Medical Treatment Billing.

CA: AB 397 Would Require Licensed Contractors to Certify Workers Comp Insurance Coverage.

CA: NAIC Report Shows Net Worth Declining for Calif. Workers Comp Insurers.

CA: Insurance Commissioner Places Majestic Insurance Company Into Conservation.

CA: WCIRB Posts Summary of 12/31/2010 Insurer Experience.

CA: Audit of San Jose Disability Retirement Program Questions Workers Comp Overlap for Work-Related Injuries.

Bipartisan Lawmakers Introduce Amendments to Radiation Exposure Compensation Act.

Travelers Reports 1Q 2011 Net Operating Income; Total Net Written Premiums Up 4 Percent.

judges in the news

> Judge Kelley Davis, Goleta District Office, has retired.

> Judge Nikki Udkovich, San Diego District Office, will retire on May 6, 2011.

NPD reporter banner

Designed especially for Lexis.com subscribers only, this monthly reporter saves you research time so that you can quickly find recent panel decisions on key topics.

APRIL ISSUE NOW IN PRODUCTION

VIEW THE EDITORIAL BOARD ROSTER

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 lexis.com; and (2) Print version, which can be stored in a binder.

View sample: Click here

What it costs: List price - $199/yr. PRICE INCLUDES BOTH PRINT AND ELECTRONIC DOCUMENT

Order now: Contact Robin.E.Kobayashi@lexisnexis.com

New 2011 Edition

New 2011 Edition

significant panel decision vs. noteworthy panel decision

LexisNexis editorial consultants deem a WCAB panel decision "noteworthy" because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers' compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers' compensation law of California.

"Noteworthy" panel decisions have not been designated as a "significant panel decision" by the Workers' Compensation Appeals Board. (Read Judge Casey's explanation of Significant Panel Decisions for further information.) Practitioners should proceed with caution when citing to a "noteworthy" panel decision and should also verify the subsequent history of the decision.

Citeable, But No Precedential Value: WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers' compensation judges [see Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)].

enewsletter archives

Take a deep dive into our past eNewsletters for 2011 and prior...warning - some links to articles may not work...report any linking problems to Robin.E.Kobayashi@lexisnexis.com.

April 20, 2011 (Special Alert)

http://archive.constantcontact.com/fs077/1102828640660/archive/1105235321520.html

April 18, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1105150789071.html

April 11, 2011 (Special Alert)

http://archive.constantcontact.com/fs077/1102828640660/archive/1105133131069.html

April 11, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1105054845922.html

April 4, 2011

http://archive.constantcontact.com/fs077/1102828640660/archive/1104973597986.html