LexisNexis Calif. Workers' Comp eNewsletter: Lien Claims and the Tribble Factor

Vol 2, Issue 30

Find Solutions & Strategies July 25, 2011

Lien Claims & The Tribble Factor

The population of lien claims has multiplied exponentially

In This Issue

* LIEN CLAIMS

* RECENT PANEL DECISION: Sanctions

* BLOG ROUND UP: Fraud, CCC's

* JOB POSTING: Defense attorney

* MSP COMPLIANCE BOOK

* NEWS HEADLINES: Rosa Moran appointed AD

* PANEL DECISIONS REPORTER

* CITEABILITY OF PANEL DECISIONS

* eNEWSLETTER ARCHIVES

A Note From the Editor

Dear WC Professionals:

We thank Howard Stevens, Esq. for his Star Trek-themed lien article. Tribbles: Hey, there's something many of us haven't thought about for awhile!

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.

lien claims

The Trouble With Tribbles, by Howard Stevens, Esq. "The Trouble With Tribbles" is a second-season episode of Star Trek: The Original Series, first broadcast on December 29, 1967 and repeated June 21, 1968. The "trouble" with the Tribbles is that they reproduce far too quickly and are capable of eating a planet barren if their breeding is not controlled. In the words of Dr. McCoy, "they are born pregnant" and threaten to consume all the onboard supplies. The problem is aggravated when it is discovered that the creatures are entering essential ship systems, interfering with their functions and consuming any edible contents present.

Sounds like lien claims to us. At first it was just a few here and there, but then the population of liens began to multiply exponentially, and now they threaten to bring down essential WCAB functions to the point where crates full of unresolved liens from the Los Angeles WCAB are reportedly being deported to Oxnard along with the lien claimants' representatives, and Los Angeles defendants are being told to pay up or be forced to litigate the liens in another County.

Maybe not the same as another planet, but still a long way to go.

So, if there really are significant issues to litigate on the liens (and very often there are) we thought it would be a good time to do some serious review of just what the rules are in proving up (or disproving) entitlement to lien reimbursement. Perhaps a better understanding of how the burdens of proof shake out may ultimately result in a more controlled population of our own version of Tribbles. 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.

SPECIAL ALERT: WCAB Sanctions Defendant in Controversial Three-Cent Dispute. On July 20, 2011, the Board issued its Opinion and Decision After Reconsideration and Order Imposing Sanctions in Vadnais v. Kraft Foods Nabisco. For background about this case, read our article in the June 20th issue of this eNewsletter.

Sanctions; WCAB affirmed WCJ's finding that defendant engaged in sanctionable conduct under Labor Code � 5813 and 8 Cal. Code Reg. � 10561 by willfully violating WCJ's order that applicant/produce clerk with 1/2/97 admitted spine injury be authorized to treat outside defendant's MPN, by attempting to transfer applicant's care back into MPN, and by failure to pay two self-procured medical bills as ordered, but exercised its discretion to reduce WCJ's imposition of four $2,500.00 sanctions for separate violations to a total sanction of $2,500.00; in imposing sanctions, WCAB acknowledged defendant's contentions that it was not acting frivolously or in bad faith when it acted on its belief that it had a right to transfer applicant's care into its MPN if it followed proper notice procedures pursuant to Babbit v. Ow Jing (2007) 72 Cal. Comp. Cases 70 (Appeals Board en banc opinion), and that WCJ's order was unlawful because defendant was entitled to transfer applicant's medical care to MPN by perfecting notice to applicant, but found that WCJ's order was not ambiguous in stating that defendant lost its right to insist that applicant be treated within MPN, and that by allowing WCJ's order to become final, having filed no petition for reconsideration, defendant was obligated to comply with order. See Fryer 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 - Jolly Roger Restaurant Company Owner Lets Workers' Compensation Coverage Lapse, by LexisNexis Workers' Compensation Law Community Staff. Read it.

Cal. Comp. Cases July Advanced Postings (7/21/2011). Here's the fourth 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: WCAB Reconsiders Valdez En Banc Decision.

FLASH: CAP Moves to Resolve Member Liabilities.

FLASH: DIR's Baker Says Cost Savings Will Accompany Any PD Increase.

Other News:

CA: Legislature Passes Joint Resolution (AJR 12) Calling Upon Congress to Pass Medicare Secondary Payer Reforms.

CA: Governor Appoints Rosa Moran as DWC Administrative Director.

CA: 75 NFL Veterans' Lawsuit Alleges League's Mismanagement of Players' Concussions.

CA: DWC Now Accepting Applications for Upcoming QME Examination.

CA: State Fund Appoints New Medical Director: Dr. Bernyce Peplowski.

CA: Judge David Hettick Named Workers Compensation Judge of the Year by State Bar.

CA: Adam Dombchik Named Applicant's Attorney of the Year by State Bar.

CA: Alan Canfield Named Defense Attorney of the Year by State Bar.

CA: Carrie Nevans to Receive Posthumous Lifetime Achievement Award by State Bar.

U.S. Commercial Insurance Market Conditions Mixed According to Marsh Report.

At Home Call Center Workers File Class Action Claiming AT&T Misclassified Them as Independent Contractors.

Iraq and Afghanistan: 2,300 Civilian Contractors Killed as of 3/31/2011.

Accident Fund Holdings Names New General Counsel.

Pharmacy Benefits: Express Scripts to Purchase Medco Health Solutions for $29.1B.

National Underwriter Releases Annual Top 100 P&C Insurance Group Rankings.

9/11 Survivors Get Details on $2.8B Victim Compensation Fund.

U.S. Senate Committee to Hear FECA Testimony on Tuesday.

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.

AUGUST 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) PDF 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

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.