LexisNexis Calif. Workers' Comp eNewsletter: Calif. & AMA Guides Sixth?

Vol 2, Issue 29

Find Solutions & Strategies July 18, 2011

Should California Switch to the 6th?

Commentary on the AMA Guides 6th Edition: the facts, flaws, shortcomings & controversies

In This Issue

* AMA GUIDES SIXTH

* RECENT PANEL DECISION: Discovery and Closure

* BLOG ROUND UP: Fraud, CCC's

* JOB POSTING: Defense attorney

* MSP COMPLIANCE BOOK

* NEWS HEADLINES: State Fund Lobbying Bill

* CITEABILITY OF PANEL DECISIONS

* PANEL DECISIONS REPORTER

* eNEWSLETTER ARCHIVES

A Note From the Editor

Dear WC Professionals:

Robert G. Rassp, Esq. was inspired by the recent events in Illinois, which adopted the AMA Guides Sixth Edition, to write a commentary on the Sixth Edition.

If you haven't subscibed yet to our free weekly eNewsletter, contact me with your name and email address, and I'll add you to the distribution list.

Sincerely,

Robin E. Kobayashi, J.D.

LexisNexis Editorial & Content Development

robin.e.kobayashi@lexisnexis.com

Top Secrets for Rating Permanent Disability

August 20, 2011

Colleen Casey Robert Rassp

Instructors: Judge Colleen Casey

& Robert G. Rassp, Esq.

Now that the 5th DCA has denied writ of review in Almaraz II, some legal observers say the WCAB's en banc opinion expanding rebuttal of PD ratings to "the four corners of the Guides" is now effectively final. The instructors for this live seminar have identified more than a dozen PD rating issues for examination.

Click here for details.

ama guides sixth edition

Should California Switch to the AMA Guides Sixth Edition? by Robert G. Rassp, Esq. This is a no holds barred editorial commentary. It is not intended to be neutral but it is intended to be factual. We wrote this article to draw the line in the sand in California in the event there is any effort to impose the use of the AMA Guides 6th Edition on our workers' compensation system. Fortunately, the prior management of the DWC articulated that there is no intention to ever adopt the 6th Edition in California but regimes change and memories fade when it comes to political decision making.

On June 28, 2011, Illinois Republican Governor Pat Quinn signed into law a workers' compensation reform package that adopts use of the AMA Guides to the Evaluation of Permanent Impairment 6th Edition.

The Illinois legislation requires that "arbitrators" (which is how workers' compensation judges are referred to in Illinois) take into consideration five factors to determine the amount of permanent disability awarded in work related injury cases - "(i) the level of impairment based on the 6th Edition of the AMA Guides; (ii) the occupation of the injured employee; (iii) the age of the employee at the time of injury; (iv) the employee's future earning capacity; and (v) evidence of disability corroborated by the treating medical records. No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order." See Illinois Statutes, Section 109.01, Sec.8.1b. Read more.

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.

Discovery; Closure; WCAB's Duty to Develop Record. WCAB, granting defendant's petition for removal from WCJ's Order finding good cause to develop record on issue of CT injury, returned matter to WCJ to decide case on existing record, when applicant/general laborer alleged cumulative injury to his bilateral upper extremities, back and bilateral lower extremities during period 1/1/90 through 9/9/2009, WCJ found that applicant sustained his burden of proving CT injury to his back and elbow but that record was not complete and needed to be developed "on issue of whether applicant sustained an industrial cumulative trauma injury," and WCAB concluded that WCJ's order prejudiced defendant so as to justify removal, that discovery had closed pursuant to Labor Code � 5502(d)(3) and there was no good cause to reopen discovery as there was no showing that there was evidence applicant could not have discovered or obtained in the exercise of due diligence prior to closure of discovery, that requirements of Labor Code � 5502(d) cannot be circumvented by WCAB's power to develop record, and that by ordering parties to obtain a job analysis and supplement the medical record with additional opinion from applicant's treating physician as well as an opinion from a physician who had never before evaluated applicant, WCJ was essentially doing applicant's attorney's job. See Elias 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 Sign

Workers' Comp Fraud Blotter - Acting Judge, Police Officer, and Corrections Officer All Facing Workers' Compensation Problems, by LexisNexis Workers' Compensation Law Community Staff. Read it.

Cal. Comp. Cases July Advanced Postings (7/12/2011). Here's the third batch of advanced postings for the July 2011 issue. Lexis.com subscribers can link to the complete headnotes and summaries. Read it.

job posting

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

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: Industry Maven Joe Havlick Dies.

Other News:

CA: Governor Signs AB 1263 Regulating Lobbying of State Fund by Former Employees, Board Members.

CA: Zurich Relocates Southwest Regional Office to Downtown Los Angeles.

CA: State Medical Board Recommends Five Years Probation for Chargers Doctor.

CA: State Fund Receives Four Communication Awards at AASCIF International Conference.

CA: Lt. Gov. Newsome to Unveil Plan to Address State's Poor Business Climate.

CA: Inland Empire County GOP Leaders Propose Secession From State of California.

CA: Three Proposed Ballot Initiatives Would End Collective Bargaining Rights for Public Employees.

CA: Workers Comp Loss and Expense Payments Rose Almost 3 Percent, According to CWCI.

CA: New Report Says Insurance Industry Accounts for 234K Jobs in California, Payroll of $16.8B.

NCOIL Workers Comp Insurance Committee to Review Model Agreement for Cross-Border Reciprocity.

House Committee Approves H.R. 2456 Federal Workers Compensation Modernization and Improvement Act.

Bid Protest Filed Against Recent CMS Contract for New WCRC.

Generic Alternatives to Lipitor Cholesterol-Lowering Pill to Become Available Later This Year.

WCRI Study Finds Low Compliance to Medical Guidelines by Physicians Prescribing Narcotics to Injured Workers.

MEDVAL Promotes Caroline H. Worrall to Chief Operating Officer.

Seabright's Chief Financial Officer Resigns.

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.

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