LexisNexis Calif. Workers' Comp eNewsletter: Supreme Court COLA Decision

Vol 2, Issue 33

Find Solutions & Strategies August 15, 2011

The COLA War Comes to an End

Supreme Court delivers blow to injured workers

In This Issue

* COLA: WORKERS LOSE

* COLA: THE SAGA ENDS

* LAWYER'S GUIDE eBOOK

* RECENT PANEL DECISION: UR; spinal surgery

* BLOG ROUND UP: Fraud, CCC's, Immigration Status

* JOB POSTING: Defense attorney

* NEWS HEADLINES: Acting Chief Judge Richard Newman

* CITEABILITY OF PANEL DECISIONS

* PANEL DECISIONS REPORTER

* eNEWSLETTER ARCHIVES

A Note From the Editor

Dear WC Professionals:

Thanks to Julius Young, Esq. and Richard Jacobsmeyer, Esq. for their commentaries on the long awaited Supreme Court decision regarding cost of living adjustment.

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

& Ogilvie Update

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.

COLA: workers lose big time

Flash: Workers Lose COLA Case, by Julius Young, Esq. Today the California Supreme Court issued its opinion in the case dealing with the start of COLA calculations for life pension and permanent total disability cases.

The case, Baker v. WCAB (formerly known as the Duncan v. WCAB case and before that as the XYZZ case), is a big loss for severely disabled workers and a win for employers and carriers.

At issue was the proper interpretation of Labor Code 4659(c) which provides for a cost of living increase for injuries after January 1, 2003 for workers entitled to receive a life pension or total permanent disability.

The California Supreme Court rejected the COLA start date adopted by the WCAB, which was the January 1 date after the date of injury.

Also rejected was the start date used by the 6th District Court of Appeals, a COLA start date calculated back to January 1, 2004 regardless of the date of injury. Read more.

COLA: 4-year saga comes to an end

Supreme Court Decides Start Date for Life Pension COLA Calculations, by Richard M. Jacobsmeyer, Esq. The California Supreme Court has issued its decision in Baker v W.C.A.B. (XYZZX) (previously Duncan v W.C.A.B.) finally determining the question pending since 1/1/03 with the passage of AB 749 and the amendment to Labor Code � 4659 providing for increases in the payments for life pensions as follows:

"(c) For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total permanent disability indemnity as set forth in subdivision[] . . . (b) shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the 'state average weekly wage' as compared to the prior year. For purposes of this subdivision, 'state average weekly wage' means the average weekly wage paid by employers to employees covered by unemployment insurance as reported by the United States Department of Labor for California for the 12 months ending March 31 of the calendar year preceding the year in which the injury occurred."

The Court was provided three different scenarios to consider: Read more.

ama guides tips FOR lawyers on the go

The Lawyer's Guide to the AMA Guides and California Workers' Compensation eBook is now available from LexisNexis�. It's portable, dependable, and simple to use on your computer with e-reader software like Adobe� Digital Edition, or on dedicated e-reader devices, such as Apple� iPad�, Sony� Reader, and Amazon� Kindle™. Attorneys, physicians, insurance professionals, and others involved with rating permanent disability depend on The Lawyer's Guide for quick answers on this complex area. Now, this same trusted content is ready whenever you need it and wherever you are, 24/7.

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 Treatment; Utilization Review; Spinal Surgery. WCAB rescinded WCJ's finding that applicant/customer service technician with 1/16/2006 lumbar spine injury was not entitled to cervical surgery and, deferring issue of applicant's entitlement to surgery, instructed WCJ to order Medical Director/Administrative Director to name an orthopedic surgeon or neurosurgeon to provide a spinal surgery second opinion in accordance with Labor Code � 4062(b), when WCJ denied surgery based on her finding that treating physician's request for authorization to perform cervical surgery was not in compliance with 8 Cal. Code Reg. � 9792.6(o) because applicant's attorney handwrote at top of physician's request "Treatment Authorization Requested," and, while WCAB agreed that request for authorization at top of physician's report was not made by treating physician, but rather by applicant's attorney, and did not specify that request was for spinal surgery in violation of Labor Code � 4610 and AD's Rules as discussed in Cervantes v. El Aguila Food Products, Inc. (2009) 74 Cal. Comp. Cases 1336 (Appeals Board en banc opinion), and inferred that deficiency was prejudicial to defendant in that defendant's objection to requested spinal surgery would have been timely if requested medical treatment was for other than spinal surgery, WCAB concluded that in workers' compensation cases form should not be exalted over substance, and that failure to strictly adhere to procedural rules is not fatal if there is no substantial prejudice to the other party. See Tomei 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 - Police Officer Made a Mint Running His Memorabilia Business While On Disability, by LexisNexis Workers' Compensation Law Community Staff. Read it.

Unlawfully Employed Worker Denied Right to Seek Remedy for Discrimination, by Richard M. Jacobsmeyer. Salas v. Sierra Pacific decision by 3rd DCA. Read it.

Cal. Comp. Cases July Issue. The CCC cites are now available for the July 2011 issue. Lexis.com subscribers can link to the complete headnotes and summaries. Read it.

Cal. Comp. Cases August Advanced Postings (8/12/2011). Here's the second batch of advanced postings for the August 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.

NEWS HEADLINES

Workers' Comp Executive:

FLASH: WCIRB Says 1.8% Rate Cut But It's Misleading It's Really a 40% Increase.

FLASH: Why Is the WCIRB Hiding Factual Documents?.

FLASH: COLA Adjustments Apply Prospectively.

FLASH: WCIRB President's Salary Outside The Norms.

Other News:

CA: Richard L. Newman Appointed Acting Chief Judge for Division of Workers' Compensation.

CA: DWC Proposes New Public Disability Accommodation Regulations.

CA: WCIRB Governing Committee Authorizes 1/1/2012 Pure Premium Rate Filing.

CA: CAAA Reacts to Supreme Court's COLA Decision.

CA: CalChamber Keeps an Eye on AB 1155, AB 375, Says Bills Would Increase Workers Comp Costs.

CA: Former Vikings Player Files Workers Comp Claim for Early Onset Dementia.

CA: Legislature Returns From Summer Recess to Address Hundreds of Bills Before 9/9 Adjournment.

CA: City of Bell Requests More Time to Investigate Police Disability Pensions, Workers Comp Settlements.

CA: Bill to Protect Hotel Housekeepers Would Require Use of Fitted Sheets.

CA: Bill to Protect Hospital Workers Would Require Hospitals to Provide Patient-Lifting Equipment.

RIMS Survey: Soft Market May Be Bottoming Out.

11th Circuit Court of Appeal Rules Health Law Mandate Unconstitutional.

Crawford Posts 2Q Results, Cites Improvement in 2011.

Crawford Declares Quarterly Dividends.

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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