LexisNexis Calif. Workers' Comp eNewsletter: Ogilvie Reversal

Vol 2, Issue 31

Find Solutions & Strategies August 1, 2011

1st DCA Reverses & Remands Ogilvie

Yet another twist to the California workers' comp system...

In This Issue

* OGILVIE: LeBOEUF LIVES

* OGILVIE CONFUSION

* LETTERS TO THE EDITOR: AMA Guides Sixth Edition

* RECENT PANEL DECISION: PQME subsequent evaluation

* BLOG ROUND UP: Fraud, CCC's

* JOB POSTING: Defense attorney

* MSP COMPLIANCE BOOK

* NEWS HEADLINES: Rosa Moran Sworn In

* PANEL DECISIONS REPORTER

* eNEWSLETTER ARCHIVES

A Note From the Editor

Dear WC Professionals:

Thanks to Robert G. Rassp, Esq. and Richard M. Jacobsmeyer, Esq. for dissecting the Ogilvie reversal for us. There's definitely more to come on this topic.

In today's eNewsletter, we have excerpted the article written by Robert Rassp. You can purchase the complete article, which provides detailed analysis on the ramifications for practitioners, and how and why the facts could prove good for Wanda Ogilvie, on the LexisNexis bookstore later today. Lexis.com users can access the complete article for a fee by clicking here.

Sincerely,

Robin E. Kobayashi, J.D.

LexisNexis Editorial & Content Development

robin.e.kobayashi@lexisnexis.com

Free eNewsletter

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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.

ogilvie: leboeuf lives

Robert Rassp The Ogilvie DCA Decision: Is Algebra Out and LeBoeuf In?, by Robert G. Rassp, Esq. On May 29, 2011, the First District Court of Appeal issued its long awaited decision on Wanda Ogilvie vs. WCAB. The decision reverses the WCAB en banc decision and remands the matter back to the WCAB to determine whether Ogilvie effectively rebutted the application of the 2005 PDRS. In its decision, the Court reversed use of an individualized diminished future earning capacity adjustment factor as a means to rebut a scheduled DFEC adjustment that came directly from the 2005 PDRS.

In this article, we will discuss the specific findings of the Court. So what does the Court say and how do we apply its findings and conclusions in our cases? Is algebra out and you no longer need to calculate WPI to wage loss ratios using EDD data and a control group? The answer to both is "yes." Is LeBoeuf back into play? "Yes", LeBoeuf has been resurrected by the Court of Appeal. Does "diminished future earning capacity" mean the same thing as "loss of ability to compete in the open labor market?" Apparently, according to the Court, the answer is "yes."

For the purpose of this article and our analysis, assume that Ogilvie injured her back and right knee as a Muni bus driver for 17 years and had to retire on a disability retirement due to her injuries. Believe it or not, the facts will prove to be good in terms of how this case may turn out for Ms. Ogilvie when her attorneys try again to rebut the DFEC adjustment. Read more.

Note: This is an excerpt of an Emerging Issues Analysis article that will be on sale later today on the LexisNexis bookstore. Lexis.com users can access the complete article for a fee by clicking here.

ogilvie: confusion reigns

Ogilvie Reversed - Confusion Reigns, by Richard M. Jacobsmeyer, Esq. The 1st District Court of Appeal has issued its decision in the combined cases of Ogilvie v W.C.A.B./ City and County of SF v WCAB reversing the W.C.A.B. en banc decision but upholding the concept of a rebuttable schedule. In its decision the Court specifically finds the W.C.A.B. exceeded its authority in creating the scheme for rebutting FEC factor in the PDRS adopted by the legislature in SB 899. However the Court may have created an even more complicated process for rebuttal with its holding than the W.C.A.B. had with its complicated formula. Read more.

letters to the editor: ama guides 6th

>>I want to commend Robert Rassp on a superb article trashing the notion of the AMA Guides 6th Edition for use in California. In 2005 I testified in Sacramento on behalf of CSIMS arguing against the adoption of the AMA Guides 5th Edition, foreseeing all sorts of conflicts (hello apportionment under two systems!), as well as questioning the extent of objectivity in the 5th Edition, and anticipating it would be "gamed" by doctors and lawyers alike - all to no avail of course.

The 6th Edition would just make a" worse" situation "worser". If there is to be any change or "reform of the reform", it should be to re-institute the 1997 PDRS! We all had benefit of a very serviceable and far less controversial framework for assessing disability (not "impairment"), and the abuses could could easily have been dealt with; eg, by statutory limitations of Subjective Factors - based ratings.

The adoption of the AMA Guides 5th Edition has proven to be a "make-work" project for the legal and medical systems to be sure, but has dismally failed to improve the lot of the injured worker. Let's not add further administrative insult to industrial injury by contemplating the 6th Edition.

Again, kudos to Rassp's masterful analysis.

Fredric H. Newton, MD

Past President, CSIMS

President/CEO Newton Medical Group

Oakland, CA

>>My thanks and appreciation [to Robert Rassp] for publicly bringing this publication with all its shortcomings to our attention.

Peter Bullock, MD

Past President, CSIMS

Redwood City, CA

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.

Medical-Legal Procedure; Panel Qualified Medical Evaluators; Subsequent Evaluations. WCAB affirmed WCJ's finding that applicant who filed claims for injuries to her cervical spine, left hand, fingers, left thumb, left upper extremity, and left shoulder on 6/7/2007 (later amended to include bilateral knees) and during cumulative period 6/2/2006 to 6/2/2007, was entitled to select a new panel QME to evaluate her cumulative injury pursuant to procedure applicable to represented employees set forth in LC 4062.2, and was not required to return to panel QME who had previously evaluated her while unrepresented for specific injury pursuant to LC 4062.1, when WCAB found that (1) process for obtaining a QME panel when an employee is represented is governed LC 4062.2 as opposed to LC 4062.1, which governs process in cases of unrepresented employee, (2) by plain language of statute, an evaluation in applicant's cumulative injury claim, filed after applicant became represented, must necessarily occur and be received under LC 4062.2, (3) although applicant would have been prevented under LC 4062.1(e) from obtaining a new panel QME for evaluation of her specific injury, LC 4062.2(e), precluding additional evaluations under LC 4062.2, did not apply to applicant's cumulative injury claim because applicant never received an evaluation for cumulative injury, and (4) LC 4062.3(j), requiring employee to return to same QME if possible to evaluate any new medical issue, did not apply, as this statute refers to new medical issues and not separate claims of injury. See Denys-Peck 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 - Anna Nicole Smith's Psychiatrist May Lose Her Medical License, by LexisNexis Workers' Compensation Law Community Staff. Read it.

Cal. Comp. Cases July Advanced Postings (7/27/2011). Here's the fifth 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

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

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

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- Ronald E. Weiss, Esq., Hamberger & Weiss, Rochester, New York.

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- 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."

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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: WCIRB Sets Up Inside Job for $500,000 Salary.

FLASH: WCIRB Kept Salaries Secret From Legislature and Board.

Other News:

CA: Rosa Moran Sworn in as Administrative Director for DWC.

CA: DWC Hosts Electronic Filing Expo at Los Angeles District Office July 29.

CA: Insurance Commissioner Announces Enhanced System for Filing Workers Comp Pure Premium Rates.

CA: IRS Investigating City of Bell's Workers Comp Settlements and Disability Retirement Benefits.

CA: Beverly Hills Psychiatrist Accused by Medical Board for Misconduct Related to Two Workers Comp Claims.

CA: Court Approves Class Certification for 4,000 Newspaper Carriers Claiming Misclassification.

CA: Dems Pressure Governor Brown to Reform the 2004 Workers Comp Reforms.

National Poll: Majority of Small Business Lack Knowledge of How Self-Insured Groups Work.

Judge Approves AIG Proposal to Pay $450M in Workers Comp Settlement.

NFL Collective Bargaining Agreement Allows Football Players to Pursue Workers Comp Claims in Other States.

Zurich Announces New Defense Base Act Wraparound Policy for Overseas Federal Contract Workers.

IOM Proposes Tougher Approval Process for Medical Devices.

Coventry Health Care Reports 2Q Earnings.

SIGAR Audit Questions US Army Corp of Engineers Processing of Defense Base Act Claims.

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.

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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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