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Vol 2, Issue 24

Find Solutions & Strategies                             June 13, 2011

Typewriter Common SenseA Balanced Approach to Litigation
Are common sense and the basic purpose of workers' comp lost amidst hyper-technical legal arguments?
In This Issue
* RECENT PANEL DECISION: UR/spinal surgery
* NEWS HEADLINES: Pharmaceutical pricing calculator

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals: 


If you haven't already subscribed to this free eNewsletter, send me your name and email address with your request for the California workers' comp eNewsletter, and I'll add you to the distribution list.
Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development

Off-Label Drug Use

Off Label Bottle

Today's issue of our FREE national workers' comp eNewsletter focuses on this important topic as it relates to workers' comp and Medicare set-asides.  
To read the issue, click here.


Guest Editor: Vernon Sumwalt, Esq.


Contents include:


Article: "Off-Label" Use of Medical Product and Services, by Vernon Sumwalt, Esq.


Article: Off-Label Drugs and Workers' Compensation Medicare Set Asides, by Jennifer C. Jordan, Esq.


Case Summaries: Off-Label Cases

balanced approach

An Argument for a More Balanced Approached to the Litigation of Workers' Compensation Cases


Workers' Compensation is a benefit delivery system based in statute. This means that most of the answers to the controversies that arise in the context of a workers' compensation case can be answered by looking at the Labor Code or possibly the California Code of Regulations. The cases interpreting these statutes are of course also extremely important in understanding and applying these statutes, but the basic entitlement to a benefit is one created by statute. After a major reform such as Senate Bill 899, it is very easy to take a very technical approach to the application of the new laws.


As the statutes are new, each and every word in a new section is subject to argument and interpretation. For example, a great deal of litigation is currently occurring over each party's varied attempts to disqualify a Panel QME from a case. There are numerous rules subject to interpretation in determining whether a Panel QME should be removed from a case. However, many times this focus on the Panel QME's compliance with this or that rule distracts the parties from the more fundamental need to understand that doctor's opinion, explore the doctor's opinion, and figure out what benefits an injured worker may be entitled to. > Read more. subscribers can link to the cases and statutes cited in this article. Be sure you're already logged onto your account.

Average weekly wage

CWCIJump in California Average Weekly Wage to Push 2012 Workers' Comp Benefits to Over $1,000/Week, by CWCI.


New U.S. Department of Labor data shows California's State Average Weekly Wage (SAWW) rose more than 2.4% from $979.90 to $1003.55 in the 12 months ending March 31, 2011, which the California Workers' Compensation Institute (CWCI) reports will push up minimum and maximum temporary total disability (TTD) rates for 2012 work injury claims, as well as other workers' compensation benefits that are tied to changes in the SAWW. Read more.


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.


Medical-Legal Procedure; Utilization Review; Spinal Surgery. WCAB, in a majority panel opinion, affirmed WCJ's finding that applicant was in need of further medical treatment to cure or relive effects of her neck, back, wrist and psyche injuries during period ending on 5/18/2006, and that applicant was not required to obtain a panel QME evaluation before contesting an adverse utilization review determination at expedited hearing, but could proceed to hearing based only on treating physician reports pursuant to State Compensation Insurance Fund v. W.C.A.B. (Sandhagen)(2008) 44 Cal. 4th 230, 73 Cal. Comp. Cases 981, which WCAB found characterized an employee's right to pursue Labor Code 4062 process as permissive rather than mandatory. See Corona panel decision.

blogs at the lexisnexis workers' comp law community 
Cal Comp CasesCal. Comp. Cases June Advanced Postings (6/10/2011), by Cal. Comp. Cases Staff. users can link to this week's advanced postings of "writ denied" cases to read the complete headnotes and case summaries. Read it. 



Fraud SignWorkers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, and Investigations (6/9/2011), by LexisNexis Workers' Compensation Law Community Staff. Read it.  
Cal Comp CasesCal. Comp. Cases May CCC Cites Now Available (6/9/2011), by Cal. Comp. Cases Staff. users can link to the cases to read the complete headnotes and case summaries. Read it. 

 MSP Red CC 

The Complete Guide to Medicare Secondary Payer Compliance

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

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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.

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

> Read more about the contents (1,350 pages). List Price: $179

Questions? Contact [email protected].


CA: Senate Committee Passes AB 397 Regarding Contractor Proof of Coverage.

CA: AB 950 Misclassification of Port Drivers Tabled.

CA: AB 584 Utilization Review California-Licensed Physician Requirement Re-referred to Committee.

CA: SB 129 Medical Marijuana and Employment Discrimination Ordered to Inactive File.

CA: A.M. Best Reaffirms Ratings for Zenith Insurance Company and Subsidiaries.

CA: Cal Chamber, Coalition Oppose Proposed Elimination of Cal/OSHA Board.

CA: DWC Reports Pharmaceutical Pricing Calculator, Data Download File Affected by Error on Medi-Cal Database.


citeability of panel decisions

PDCITEPractitioners 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)]. subscribers can link to the cases cited above.

NPD reporter banner

NPDDesigned specifically 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] 
common sense, continued...


The point of this article is that in many cases currently pending before the W.C.A.B., the parties are placing their hyper-technical legal arguments ahead of trying to figure out what is going on in the underlying case. It appears that "common sense" as well as the basic purpose of the workers' compensation system gets lost in the midst of all of these very creative, and possibly intellectually stimulating, legal arguments.


In a recent case, a panel of commissioners took a more "common sense" approach in addressing whether an employee was entitled to temporary disability.


In Boatman v. City of Los Angeles ADJ 6796410, 2011 Cal. Wrk. Comp. P.D. LEXIS 6,applicant sought reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award wherein it was found that applicant's industrial injury did not result in a period of temporary disability. Applicant argued that the WCJ erred in finding that the industrial injury did not cause temporary disability in that the evidentiary record supported a finding that the applicant was temporarily disabled from February 10, 2009 to March 6, 2009.


In the underlying case, the WCJ found that the applicant was not temporarily disabled because none of the medical reports contained an explicit statement that the applicant was temporarily disabled. Unlike the WCJ, the commissioners found that the record supported a finding of temporary disability from February 10, 2009 to March 6, 2009. In so finding, the commissioners observed:


"In reaching our holding, we are aware that the applicant has the burden of proving his entitlement to temporary disability benefits. (Lab. Code Section 5705; Edwards v. Workers' Comp. Appeals Bd. (2008) 73 Cal.Comp.Cases 1358, 1360 [writ denied].) We are also aware that any decision of the WCAB must be supported by "substantial evidence." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 [Appeals Board en banc].)... However, in coming to a decision, we are entitled to "draw reasonable inferences from the evidence." (Ybarra v. Workers Comp. Appeals Bd. (2002) 103 Cal.App.4th 987, 990 [67 Cal.Comp.Cases 1283].) Although no physician explicitly opined that the applicant was temporarily disabled, the fact that the applicant underwent surgery to correct a "significant tear" of the meniscus which required the applicant's wife to help him to get out of bed, and which required two weeks convalescence before the applicant was recommended to undergo physical therapy gives rise to a reasonable inference that he was temporarily disabled for the short time claimed... As noted by the applicant, the fact that some of our inferences are drawn from the applicant's own testimony and history given to Dr. Hatch is not an impediment to our holding. In Western Pacific Railroad v. Industrial Acc. Comm. (Galli) (1936) 17 Cal.App.2d 119, 120-121 [1 Cal.Comp.Cases 190] the Court upheld a finding of temporary disability based on the applicant's testimony that he could not work, even though it contradicted the expert medical opinion in evidence. In the present case, there is not even any expert medical testimony contradicting the applicant's temporary disability status."


Accordingly, the panel granted reconsideration and rescinded the Findings and Award issued by the WCJ.


In conclusion, in seems that many of the controversies currently being litigated could be easily resolved if the parties could "step-back" from the issue and remember the basic purpose of the workers' compensation process. Though the correct interpretation and/or application of a statute is important, if the parties could more often remember the purpose of the system in which they work and truly look at what is happening in the underlying case, much of the litigation, not to the mention the delays caused by the litigation, could be avoided. subscribers can link to the cases and statutes cited in this article. Be sure you're already logged onto your account.


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


Copyright 2011 LexisNexis. All rights reserved. This article will be published in the July 2011 issue of the California WCAB Noteworthy Panel Decisions Reporter.

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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 [email protected].

June 6, 2011: Post-Valdez Defense Protocols

May 31, 2011: Stress-Related Compensable Consequence Injuries

May 23, 2011: Developing the Record

May 16, 2011: Overpayments

May 9, 2011: Third Party Cases

May 2, 2011: Temporary Total Disability

April 25, 2011: Non-MPN Physician Reports

April 20, 2011 (Special Alert): Valdez En Banc

April 18, 2011: 2011 Alphabet Soup

April 11, 2011 (Special Alert): Hernandez significant panel decision

April 11, 2011: Rule 38 and Medical Examiner Reports

April 4, 2011: Penalties Post SB-899

March 28, 2011: Verification and Lien Claimants

March 21, 2011: Workers' Comp and Earthquakes

March 17, 2011 (Special Alert): Guitron En Banc

March 14, 2011: LC 5710 Attorney's Fees

March 7, 2011: Mediation

February 28, 2011: Arbitrations
February 21, 2011: AMA Guides Rating: Roles of Rater, Judge, Physicians
February 14, 2011: In Memoriam: Carrie Nevans
February 7, 2011: Good Faith Personnel Actions
January 31, 2011: Service in EAMS

January 24, 2011 (addendum): Sanctions; EAMS rules
January 24, 2011: Public Self-Insured Employers 

January 17, 2011: CHSWC Report on Liens 

January 10, 2011: Temporary Workers 

January 3, 2011: Permanent Total Disability & Total Loss of Future Earning Capacity



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