LexisNexis Workers' Comp eNewsletter - Calif. 6/6/2011: Post-Valdez Defense Protocols

Vol 2, Issue 23

Find Solutions & Strategies June 6, 2011

Living in a Post Valdez World

Six Steps for Suggested Defense Protocols

In This Issue

* POST-VALDEZ DEFENSE

* ATTORNEY FEES; COLA

* BLOG ROUND UP: CCCs, Fraud

* MSP COMPLIANCE BOOK

* NEWS HEADLINES: WCIRB leadership change

* CITEABILITY OF PANEL DECISIONS

* PANEL DECISIONS REPORTER

* eNEWSLETTER ARCHIVES

A Note From the Editor

Dear WC Professionals:

Thanks to Corey Ingber, Esq. for sharing his insights on suggested defense protocols in a post-Valdez world.

If you haven't signed up yet for this FREE Calif. workers' comp eNewsletter, simply email me with your request, along with your name and email address.

Sincerely,

Robin E. Kobayashi, J.D.

LexisNexis Editorial & Content Development

robin.e.kobayashi@lexisnexis.com

Judge of the Year: David Hettick

The California State Bar Workers' Compensation Section will be honoring Judge David Hettick of the San Francisco District Office with a Judge of the Year award. The ceremony for all recipients of the 2011 Steve Jimenez Special Recognition Awards will be held at the annual State Bar convention in September. Judge Hettick is a founding member of the LexisNexis California Workers' Compensation Editorial Board, where for the last 17 years he has provided invaluable feedback on California Compensation Cases, Workers' Comp Laws of California, and the Calif. WCAB Noteworthy Panel Decisions database and reporter. Congratulations Judge Hettick!

post-valdez: 6 steps for the defense

What Actions, If Any, Should Be Taken When We Are Still Getting Medical Reports From Out-Of-Network Physicians? Living in a Post Valdez World, by Corey Ingber, Esq.

HOW DO WE DETERMINE WHETHER WE HAVE A DEFENSE? Please recall the WCAB En Banc decision in Valdez v. Warehouse Demo Services/Zurich [ADJ7048296] where on 4/20/11, the WCAB Commissioners, with two partially dissenting opinions, held that where unauthorized medical treatment is obtained outside of a validly established and properly noticed MPN, the reports from these non-MPN doctors are inadmissible and may not be relied upon. What is the practical, claims handling and practice impact of this decision?

VALDEZ IS NOT CAST IN STONE--NOT YET: You should know that applicant's attorneys have filed a petition for reconsideration from this decision. They contend, among other things, that the WCAB decision causes "mischief, exorbitant costs, and an absurd result."[i] It is therefore conceivable, but not likely, that the Commissioners could revisit the issue. On a procedural level, if the WCAB takes no action on the petition, then the petition for reconsideration is denied by operation of law within 60 days from the date of filing, per Lab Code 5909. Given the enormous importance of this issue, we expect the WCAB will act upon the petition, most likely by issuance of a simple denial before the 60 days. Assuming a denial is made, or a granting of the petition and then the issuance of a subsequent decision upholding the initial determinations, then applicant's attorneys will almost certainly file a writ of review. Therefore, it is highly likely this issue will not be put to its final rest before the end of 2011 if not beyond. For present purposes however, the current decision is "good law" and is therefore binding statewide unless and until the WCAB issues a new and contrary decision or an appellate court either stays or reverses the decision. Read more.

SNEAK PREVIEW: RECENT PANEL DECISION

Attorney Fee Calculations for PTD Awards. In a recent panel decision, the WCAB provided extensive discussion of attorney fee calculations, the present value of a permanent total disability award, and cost of living adjustment (COLA) increases pending the Supreme Court's decision in *Duncan v. W.C.A.B. (2009) 179 Cal.App.4th 1009, 74 Cal.Comp.Cases 1427.

The WCAB panel granted reconsideration and rescinded the WCJ's award of fees to the attorney for the applicant, who incurred a permanent total disability as a result of a 5/7/2005 injury to the lumbar spine, and remanded the issue for further proceedings, when the WCAB found that:

(1) The WCJ should have awarded a 15 percent rather than a 12 percent fee pursuant to LC 4906(d) and WCAB PMP 1.140 because this case was of above average complexity...Read more

blogs at the lexisnexis workers' comp law community

Cal. Comp. Cases June Advanced Postings (6/3/2011), by Cal. Comp. Cases Staff. Lexis.com users can link to this week's advanced postings of "writ denied" cases to read the complete headnotes and case summaries. Read it.

Workers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, and Investigations (6/3/2011), by LexisNexis Workers' Compensation Law Community Staff. Read it.

HOW TO ACHIEVE MEDICARE SECONDARY PAYER COMPLIANCe

The Complete Guide to Medicare Secondary Payer Compliance

Jennifer C. Jordan, Esq., Editor-in-Chief

To order, go to www.lexisnexis.com/Medicare.

Medicare Secondary Payer Compliance is an elusive area of law - tucked away in various public laws, statutes, regulations and CMS guidance materials.

Worse, many people don't realize that the CMS approval process for MSAs is voluntary-and carries an inherent cost.

That's why you need this all-in-one handbook ...

Authored by the leading expert in the field of the MSP, "The Complete Guide to Medicare Secondary Payer Compliance" is the only available resource written by an industry insider with a deep understanding and practical knowledge about this highly complex and evolving area of the law.

For the first time, you'll find all relevant pieces of the law in one accessible place. And by understanding what CMS wants-and why it wants it-you'll be better able to:

● Take control of your insurance settlements

● Avoid pitfalls, delays and penalties

● Comply with reporting requirements

You'll also learn that CMS' preference may not be the only way to achieve MSP compliance.

Attorneys agree! This is the first comprehensive resource for achieving Medicare Secondary Payer Compliance.

"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.

Implementation of the MMSEA reporting program is underway. Don't wait to order!

Questions? Contact Robin.E.Kobayashi@lexisnexis.com.

NEWS HEADLINES

Workers' Comp Executive:

FLASH: Assembly Budget Panel Votes to Keep Standards Board.

FLASH: WCIRB's Bob Mike to Leave.

FLASH: Court Approves Commissioner's Majestic Rehabilitation Plan.

Other News Items:

CA: Assembly Approves Bill to Extend Benefits to Health Care Staff Workers.

CA: Assembly Passes AB 378 to Change Reimbursement Rates for Compound Drugs.

CA: Insurance Commissioner Appoints New Deputy Insurance Commissioner.

CA: Assembly Passes AB 335 Regarding Employee Notices.

CA: SB 684 Workers Comp Policy Transparency Bill Moves to Assembly Insurance Committee.

Sedgwick CMS Acquires Assets of Cambridge Integrated Services Group, Inc.

A.M. Best Affirms Ratings of Eastern Insurance Holdings and Subsidiaries.

Eastern Insurance Holdings Announces Quarterly Dividend.

citeability of panel decisions

Practitioners should proceed with caution when citing to a panel decision that hasn't been designated as a "significant panel decision" by the Workers' Compensation Appeals Board, and should also verify the subsequent history of the panel decision. 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)].

Lexis.com subscribers can link to the cases cited above.

NPD reporter banner

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

JUNE 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 - $204/yr. PRICE INCLUDES BOTH PRINT AND ELECTRONIC DOCUMENT

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

SNEAK PREVIEW, continued...

(2) Prior to determining a reasonable attorney's fee based on a 15 percent calculation, it is necessary for the WCJ to re-calculate the present value of the applicant's permanent total disability indemnity award to account for COLAs that the applicant may reasonably be expected to receive under LC 4659(c) during her anticipated life, using either a 4.7 percent future COLA (which the WCAB did not assume to be correct absent other evidence), or whatever average future COLA the DEU rater deems appropriate, and to issue and serve three alternative present value calculations using three possible start dates (1/1/2004, first January 1 after date of injury, and first January 1 after permanent total disability or life pension payments start) if the Supreme Court's decision in Duncan is not yet issued;

(3) The WCJ may award an attorney's fee based on the lowest present value calculation, reserving jurisdiction to later increase the fee if the Supreme Court's decision in Duncan so warrants;

(4) A reasonable attorney's fee in a 100 percent permanent disability case with COLA is not limited to what a fee would be in a 99-3/4 percent permanent disability case of similar difficulty and time expenditure, but should not be based strictly on the permanent total disability award's present value, with a COLA increase;

(5) In determining a reasonable fee in a 100 percent permanent disability case, the WCJ must consider the responsibility assumed, care exercised, time expended and results obtained by the attorney pursuant to LC 4906(d), as well as attorney's fee guidelines regarding the complexity of the case and the attorney's efforts in helping the applicant obtain temporary disability and or/medical costs in addition to 100 percent permanent disability and is not required to allow a fee based strictly on a fixed percentage of 621.25 weeks of permanent partial disability; and

(6) The WCJ should consider the actuarial present value of the injured employee's lifetime permanent total disability award at temporary total disability indemnity rates, including an average COLA under LC 4659(c), if warranted.

The WCAB stated that the WCJ should reserve jurisdiction pending the outcome of the Supreme Court's decision in Duncan.

* Duncan was argued and submitted on May 24, 2011. See S179194. Opinion forthcoming.

Read the Wilson panel decision.

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. Panel decisions are citeable, but not binding precedent.