Calif Edition Banner March 2010
Vol 2, Issue 25

Find Solutions & Strategies                             June 20, 2011

Pennies Three CentsSanctions
 
Does a petition for reconsideration over a three cent dispute justify the imposition of sanctions?
In This Issue
* SANCTIONS
* ALMARAZ/GUZMAN II
* IMPORTANT NOTICE: Corona panel decision
* RECENT PANEL DECISION: Domestic partners
* BLOG ROUND UP: Fraud
* JOB POSTING: Defense attorney
* MSP COMPLIANCE BOOK
* NEWS HEADLINES: $17M fraud case
* CITEABILITY OF PANEL DECISIONS
* PANEL DECISIONS REPORTER
* eNEWSLETTER ARCHIVES

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

Was a Petition for Reconsideration Appropriate Where Error in Credit Awarded to Defendant Amounted to a "Paltry" Three Cents?

 

Recently, a panel of commissioners issued a panel decision addressing a petition for reconsideration filed over three cents. In Vadnais vs. Kraft Foods Nabisco, ADJ 2073289 and ADJ2667420, the WCJ found that defendant unlawfully took credit in ADJ2073289 for permanent disability payments in the amount of "$13,113.33" advanced in the companion case, ADJ2667420. Notwithstanding the unlawfulness of defendant's action, the WCJ allowed the credit for equitable reasons, although he separately issued a notice of intention to sanction defendant $2,500.00 for improperly unilaterally asserting the credit in ADJ2073289. In ADJ2667420 applicant's injury caused eight percent permanent disability, for which indemnity was payable in the sum of $3,360.00, "less credit for such payments previously made." The WCJ found that defendant had advanced permanent disability indemnity for this injury in the sum of $16,473.33 creating an overpayment in the sum of $13,113.33. Read more.

 

eNewsletter subscribers can link to the Vadnais panel decision and defendant's response cited in this article.

 

Lexis.com subscribers can link to all other cases and statutes cited in this article. Be sure you're already logged onto your lexis.com account.

almaraz/guzman ii

Shaw Jacobsmeyer NEW VERSION5th District Finally Acts in Almaraz Appeal, by Richard M. Jacobsmeyer, Esq. The 5th Appellate District, after sitting on the defendant's appeal for over a year after briefing has been completed, issue a summary denial of the Petition for Writ of Review, thus ending the second prong of the appeal of the combined W.C.A.B. en banc decisions in what has commonly become known as Almaraz/Guzman II (or for those who are into texting AG2). Read more.

important notice: corona panel decision

In last week's "Sneak Preview" column of the eNewsletter, we reported the WCAB panel decision of Corona v. Aptos Christian Fellowship. On May 16, 2011, the WCAB on its own motion granted reconsideration of the March 1, 2011 Findings and Award, and rescinded its April 26, 2011 Opinion and Order Denying Reconsideration. To read the May 16th WCAB order, click here.  We will continue to track this case for further developments.

 

Reminder: Practitioners should check the subsequent history of a panel decision before citing to it.

SNEAK PREVIEW: RECENT 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.

 

Death Benefits; Dependency; Domestic Partners. WCAB held that WCJ incorrectly concluded that, pursuant to Labor Code 3501(b), party in interest was domestic partner and dependent "surviving spouse" of applicant who died on 1/9/2009 as a result of a stroke suffered on 3/4/2008 and that she was not entitled to conclusive presumption of total dependency on that basis, when party in interest was not applicant's registered domestic partner as required and defined by Family Code 297 and protections provided to "domestic partners" under Family Code 297.5, requiring that they be treated same as a spouse, only apply if partners are registered as domestic partners pursuant to California law; WCAB found that, based on evidentiary record, applicant and party in interest were good faith members of the same household within meaning of Labor Code 3503, and that party in interest was dependent on applicant before applicant incurred her industrial injury, and returned matter to WCJ to determine extent of party in interest's dependency and her entitlement to benefits. See Gladden panel decision.

 

Reminder: Practitioners should check the subsequent history of a panel decision before citing to it.

blogs at the lexisnexis workers' comp law community 

 

Fraud SignWorkers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, and Investigations (6/16/2011) - Psychologist Charged With Fake Postal Employee Fear of Dogs Disability Claim, by LexisNexis Workers' Compensation Law Community Staff. Read it.  
  
  
job posting 
Goldman Magdalin Krikes

WC Defense Associate. Brea office of Goldman, Magdalin & Krikes, LLP seeks attorney with minimum 5 years workers' comp defense experience, competitive salary & benefits. Submit in Word format cover letter, resume, salary history/requirements to dcaldarelli@gmklaw.com.

HOW TO ACHIEVE MEDICARE SECONDARY PAYER COMPLIANCe

 MSP Red CC 

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.

 

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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:

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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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NEWS HEADLINES

Workers' Comp Executive:

FLASH: Doctors Arrested in $17 Million Workers' Comp Fraud Case.

FLASH: Fifth District Denies Review in Almaraz.

Copyright 2011 Providence Publications, LLP. All rights reserved. Reprinted with permission.

 

Other News:

CA: Possible Data Breach Reported and Contained for 300,000 Individual Records at Southern California Medical-Legal Consultants. 

CA: DWC Pharmaceutical Pricing Calculator, Data Download File Revised to Restore Missing National Drug Codes.

CA: DWC Says TTD Rate for 2012 to Increase to $1010.50.

CA: CHSWC Releases Booklet on Workers Comp Benefits When Employer Illegally Uninsured.

CA: Senate Passes AB 1263 Regarding SCIF Post-Employment Lobbying.

CA: Op/Ed Says SCIF Seeks Unfair Competitive Advantage With AB 228.

CA: Governor Vetoes State Budget Bill. 

Congressional Hearing on Medicare Secondary Payer Regime Scheduled 6/22/2011.

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)].

 

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

NPD reporter banner

NPDDesigned 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.

Thumbs Up JULY ISSUE NOW IN PRODUCTION


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
 
SANCTIONS, continued...

SanctionsOn reconsideration, defendant contended the WCJ's decisions contained clerical errors, specifically; defendant contended it was entitled to a credit of $13,113.36 in ADJ2073289 and not $13,113.13. Defendant pointed to the Minutes of Hearing and Summary of Evidence (MOH/SOE) as well as evidence which showed that the actual amount of the permanent disability indemnity advanced in ADJ2667420 was $16,473.36 therefore creating an overpayment in the amount of $13,113.36. Defendant argued that it should be awarded a credit in that amount.

  

In addressing defendant's petition for reconsideration, the commissioners analyzed the statutes applicable to sanctions. The commissioners specifically addressed Labor Code Section 5813 as well as WCAB Rule 10561(b). In finding that a petition for reconsideration over a three cent dispute justified the imposition of sanctions, the commissioners noted:

  

"Defendant's petition for reconsideration does not reveal, and we can not imagine, what 'reasonable' justification underlies its request for reconsideration of an award of a credit that is short by three cents. Defendant is correct that there is a 'legal' ground: the evidence does not, strictly speaking, justify the finding of fact. The evidence, Joint Exhibit AA, demonstrates that the actual permanent disability indemnity advanced was $16,473.36. The decisions do, therefore, contain errors. That fact, alone, does not qualify as 'reasonable justification' for defendant's petition, when the errors are undeniably de minimus.

  

"Even if defendant did have a reason, not apparent to us, for seeking correction of such a trifling error, a petition for reconsideration was unnecessary. A WCJ may correct clerical errors at any time, even after the time for filing a petition for reconsideration has lapsed. (Toccalino v. Worker's Comp. Appeals Bd. (Sierra Vista Hospital) (1982) 128 Cal.App.3d 543 [47 Cal.Comp.Cases 145, 154-155].) A simple request to the WCJ to correct the clerical errors - better yet, a joint request - would have been sufficient. Even if defendant chose to file a petition, the caption of the petition should have specified that it sought correction of clerical errors only. By captioning the petition a "Petition for Reconsideration," a process was set in motion that invoked a substantial expenditure of labor at both the district office and the Office of the Commissioners.

 

"In addition, it is difficult to understand in what sense defendant was 'aggrieved' by an error amounting to three cents. (See Lab. Code. 5900, 5903.) To waste the Appeals Board's time and resources over a three-cent error does an outrageous disservice, not only to us and our staff, but to the many deserving litigants awaiting our decisions on matters of consequence."

 

For these reasons and due to defendant's failure to bring the incorrect amount also reflected in the Minutes of Hearing/Summary of Evidence to the WCJ's attention, the commissioners issued a notice of intention to sanction defendant Kraft Foods; defendant's attorney as well as the law firm wherein defense counsel worked, jointly and severally, in the amount of $500.00. The parties were given fifteen (15) days within which to file written objections, showing good cause why the sanctions should not be imposed and to "enlighten" the commissioners us as to whom, specifically, felt compelled to delay these proceedings by filing a frivolous petition for reconsideration over a "paltry three cents".

 

Subsequent to the Opinion on Order Granting the Petition for Reconsideration and Notice to Impose Sanctions discussed above, defendant did file a Response to the WCAB's Notice of Intention to Impose Sanctions. In the response, defendant argues that the error contained in Judge Samuel's decision justified its petition for reconsideration. Specifically, defendant argues in pertinent part:

 

"...there was reasonable justification in filing a petition for reconsideration to correct these errors, to insure that Kraft Foods was not responsible for paying more than it owed...If the errors were not corrected, applicant would have an award for three more cents that [sic] he is entitled to. Even if three cents is not a significant amount, Kraft Foods should not have to pay any amount more than it owes...Even though, as the Workers' Compensation Appeals Board points out in its Opinion, that filing a petition for reconsideration was unnecessary to correct a clerical error, Title 8, California Code of Regulations does not prohibit the filing of a petition for reconsideration to correct such errors."

 

Thus, defendant argues that whether the amount in dispute is three cents or three million dollars, the petition for reconsideration was, in fact, meritorious. Additionally, defendant makes the point that there is nothing, from a legal perspective, prohibiting a party from seeking to correct a clerical error by way of the filing of a petition for reconsideration. It will be interesting to see how the commissioners respond. We will continue to track this case and report any developments.

 

Reminder: Practitioners should check the subsequent history of this panel decision before citing to it.

 

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 an upcoming 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 work...report any linking problems to Robin.E.Kobayashi@lexisnexis.com.

June 13, 2011: A Balanced Approach to Litigation

http://archive.constantcontact.com/fs077/1102828640660/archive/1105844751127.html

June 6, 2011: Post-Valdez Defense Protocols

http://archive.constantcontact.com/fs077/1102828640660/archive/1105783834099.html

May 31, 2011: Stress-Related Compensable Consequence Injuries

http://archive.constantcontact.com/fs077/1102828640660/archive/1105669474005.html

May 23, 2011: Developing the Record

http://archive.constantcontact.com/fs077/1102828640660/archive/1105575703257.html

May 16, 2011: Overpayments

http://archive.constantcontact.com/fs077/1102828640660/archive/1105406423234.html

May 9, 2011: Third Party Cases

http://archive.constantcontact.com/fs077/1102828640660/archive/1105318030890.html

May 2, 2011: Temporary Total Disability

http://archive.constantcontact.com/fs077/1102828640660/archive/1105244021985.html

April 25, 2011: Non-MPN Physician Reports

http://archive.constantcontact.com/fs077/1102828640660/archive/1105193487500.html

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

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

April 18, 2011: 2011 Alphabet Soup

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

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

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

April 11, 2011: Rule 38 and Medical Examiner Reports

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

April 4, 2011: Penalties Post SB-899

March 28, 2011: Verification and Lien Claimants

http://archive.constantcontact.com/fs077/1102828640660/archive/1104894131044.html

March 21, 2011: Workers' Comp and Earthquakes

http://archive.constantcontact.com/fs077/1102828640660/archive/1104811663390.html

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

March 14, 2011: LC 5710 Attorney's Fees

http://archive.constantcontact.com/fs077/1102828640660/archive/1104743080821.html

March 7, 2011: Mediation

http://archive.constantcontact.com/fs077/1102828640660/archive/1104680877858.html

February 28, 2011: Arbitrations

http://archive.constantcontact.com/fs077/1102828640660/archive/1104610163532.html
February 21, 2011: AMA Guides Rating: Roles of Rater, Judge, Physicians
http://archive.constantcontact.com/fs077/1102828640660/archive/1104523390560.html
February 14, 2011: In Memoriam: Carrie Nevans
http://archive.constantcontact.com/fs077/1102828640660/archive/1104442568858.html
February 7, 2011: Good Faith Personnel Actions
http://archive.constantcontact.com/fs077/1102828640660/archive/1104364443854.html
January 31, 2011: Service in EAMS

January 24, 2011 (addendum): Sanctions; EAMS rules

http://archive.constantcontact.com/fs077/1102828640660/archive/1104294156793.html
January 24, 2011: Public Self-Insured Employers

http://archive.constantcontact.com/fs077/1102828640660/archive/1104266393095.html 

January 17, 2011: CHSWC Report on Liens

http://archive.constantcontact.com/fs077/1102828640660/archive/1104223885119.html 

January 10, 2011: Temporary Workers

http://archive.constantcontact.com/fs077/1102828640660/archive/1104176109442.html 

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

http://archive.constantcontact.com/fs077/1102828640660/archive/1104077989541.html

 

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