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Vol 2, Issue 37

Find Solutions & Strategies                    September 12, 2011

Ogilvie Yellow Legal PadWhen Is a Permanent Disability Award Final? 
WCAB panel says Ogilvie constitutes a change in the law sufficient to support a petition to reopen
In This Issue
* RECENT PANEL DECISION: Cancer Presumption
* NEWS HEADLINES: Ogilvie appealed to Supreme Court

A Note From the Editor

Robin Kobayashi 2010

Dear WC Professionals: 


The legislative session ended Friday, Sept. 9. Next week we'll have a legislative bill round up, with links to any enrolled versions of bills.


If you haven't subscibed yet to our free weekly eNewsletter, send me your name and email address along with your request.  

Robin E. Kobayashi, J.D.
LexisNexis Legal & Professional - Analytical Operations
Reopening a pd award
When Is a Permanent Disability Award Final?


On July 29, 2011, the First District Court of Appeal issued Ogilvie v. WCAB, 2011 Cal. App. LEXIS 988, its appellate review of Ogilvie II (Ogilvie v. City and County of San Francisco (2009) 74 Cal. Comp. Cases 1127). The appellate decision in Ogilvie essentially agreed with the WCAB to the extent that it, too, believed that the DFEC adjustment factor, as well the scheduled rating more generally, could be rebutted. However, it disapproved of the methodology advanced by the commissioners in Ogilvie II.


Thus, as of July 29, 2011, we have yet another manner or method of determining permanent disability for an injured employee. This parade of appellate cases determining how permanent disability is determined in a workers' compensation case raises a very interesting question: If a certain level of permanent disability has been determined in a case, either by stipulation or Findings and Award, can one of the parties subsequently decide to "re-open" that prior determination based on the latest interpretation of how permanent disability is supposed to be determined in the workers' compensation context? > Read more subscribers can link to the cases, statutes, etc. cited in this article.

flash: ogilvie appealed to supreme court
On September 7, 2011, the City and County of San Francisco filed a petition for review with the Supreme Court in the case of Ogilvie v. Workers' Comp. Appeals Bd. (S196257).


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.


Presumption of Industrial Causation; Cancer; Peace Officers. WCAB affirmed WCJ's finding that prostate cancer suffered by applicant/police officer during period 1/1/2000 to 1/1/2001, was presumed compensable under Labor Code § 3212.1, and that defendant failed to rebut presumption of compensability pursuant to criteria set forth in Foust v. City of San Diego (2003) 68 Cal. Comp. Cases 1822 (WCAB en banc opinion), when (1) applicant was exposed to benzene, a known carcinogen, during his employment and opinions of panel QME and other reporting physician constituted prima facie evidence that applicant was exposed to cadmium and polycyclic aromatic hydrocarbons, associated in some studies with increased incidence of prostatic cancer, (2) although panel QME found that applicant's cadmium exposure not of sufficient frequency or severity to have reached threshold of injurious exposure, WCAB found that Labor Code § 3212.1 does not require that level of exposure to a known carcinogen causatively linked to the cancer which developed meet or exceed a recognized injurious threshold level, but just that exposure be established, (3) panel QME opined that applicant's exposures probably contributed to his development of cancer or its progression, and (4) defendant failed to show that carcinogen was not reasonably linked to disabling cancer. See Johnson 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 - Operation Backbreaker Reveals Chiropractor Fraud,  by LexisNexis Workers' Compensation Law Community Staff. Read it.




Cal Comp CasesCal. Comp. Cases September Advanced Postings (9/7/2011). Here's the second batch of advanced postings for the September 2011 issue. subscribers can link to the complete headnotes and summaries. Read it.




Cal Comp CasesCalifornia Workers' Compensation Case Roundup (9/9/2011). The CCC citations for the August 2011 issue of Cal. Comp. Cases are now available. subscribers can link to the complete headnotes and summaries. Read it.

Workers' Comp Executive:

FLASH: 1-888 WHAT?.

FLASH: See the Workers' Comp Rate Hearing Live Stream.

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


Other News:

CA: Insurance Commissioner Hails Passage of SB 684 to Make Workers Comp Policies More Transparent.

CA: AB 1426 Would Eliminate Court Administrator Position.

CA: AB 378 Compound Drug Fee Schedule Stirs Debate Among Insurers, Doctors, Labor Advocates.

CA: State Building Bomb Threat: Sacramento WCAB District Office Evacuated.

CA: Ogilvie Case Appealed to Supreme Court.

The Cost of 9/11: Insurance Perspective.

The Impact of TRIA: Insurance Experts Weigh In.

9/11 Tribute to Marsh, AON Employees: Larson Advisory Board Member Rebecca Shafer Remembers Her Colleagues.

New MMSEA Sec.111 User Guide Highlights Lack of Progress by CMS.

IAIABC Announces New Executive Director Upon Greg Krohm's Retirement End of 2011.

CNA Extends Term of Tom Motamed, Chairman and CEO.

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)]. subscribers can link to the cases cited above.

reopening, cont.

REOIn Linda Jenkins v. Family Practice Medical Associates and Employers Compensation Insurance Company ADJ2290172, 2011 Cal. Wrk. Comp. P.D. LEXIS 167, a panel of commissioners with the Workers' Compensation Appeals Board addressed this very question. In Jenkins, defendant sought reconsideration of the Findings & Order issued by the workers' compensation administrative law judge (WCJ), wherein the WCJ found that good cause existed to re-open applicant's previous Award of 17% permanent disability based on a change in the law. The WCJ found that the decisions in Ogilvie v. City and County of San Francisco (2009) 74 Cal. Comp. Cases 248 (Appeals Board en banc) (Ogilvie I) and Ogilvie v City and County of San Francisco (2009) 74 Cal. Comp. Cases 1127 (Appeals Board en banc) (Ogilvie II) constituted a change in the law sufficient to allow applicant the opportunity to reopen her prior determination of permanent disability and specifically litigate the issue of whether she should receive a higher award based on the methodology described in those cases.


On reconsideration in Jenkins, defendant argued that the prior determination of permanent disability was res judicata and furthermore, it argued that the Ogilvie cases did not constitute an actual change in the law or "good cause" for purposes of re-opening the prior award of permanent disability.


In responding to defendant's petition for reconsideration, the panel noted:


"The Appeals Board has power, for "good cause," to reopen a case and to rescind, alter, or amend the original decision when a petition to reopen has been filed within five years of the date of injury. (Lab. Code 5803.) This power may not be predicated upon a mere change of opinion by the commission as to the correctness of its original decision." (Merritt-Chapman & Scott Corp. v. Industrial Acc. Comm. (Smith) (1936) 6 Cal.2d 314, 316 [1 Cal.Comp.Cases 144, 146].) It is well established that a change in case law or judicial interpretation of a statute may constitute good cause to reopen a decision based on prior law. (Knowles v Workmen's Comp Appeals Bd (1970) 10 Cal.App.3d 1027 [35 Cal.Comp.Cases 411. 412] ("It is clear that a subsequent judicial interpretation of the compensation statutes contrary to a prior administrative interpretation is 'good cause' to reopen a case under section 5803 of the Labor Code..."); State Compensation Insurance Fund v. Industrial Acc. Comm. (Dean) (1946) 73 Cal.App.2nd 248, 257 [11 Cal.Comp.Cases 30] (A subsequent Supreme Court decision showing an earlier decision of the Appeals Board as erroneous, presents good cause to reopen upon a timely filed petition.)... The rationale for a change of law to be considered good cause for reopening applies equally to Appeals Board en banc decisions and appellate court opinions. As the Appeals Board functions as an appellate court within the workers' compensation system, an Appeals Board decision that includes a new statutory interpretation may constitute a change of law pursuant to section 5803. (Gonzalez v. Workers' Comp Appeals Bd. (2008) 73 Cal.Comp.Cases 284 (writ den.).) Here, the WCJ considered whether an exception exists, due to a change in the law, which allows applicant to re-litigate matters previously tried and decided. As explained below, we agree with the WCJ's conclusion that the Ogilvie decisions constitute a change in the law sufficient to support applicant's petition to reopen."


The panel concluded by observing:


"After the statutory time had lapsed for applicant to file a petition for reconsideration, the en banc decisions in Ogilvie I (February 3, 2009) and Ogilvie II (September 3, 2009) were issued. These decisions did more than clarify and confirm that the 2005 Schedule is rebuttable; they presented a change in the law by articulating the factors to consider in rebutting the Schedule, and set forth the methodology to do so. Therefore, we are persuaded that the WCJ properly determined that Ogilvie constituted a change of law sufficient to justify applicant's petition to reopen."


Jenkins makes it very clear that the en banc decisions in Ogilvie I and Ogilvie II constituted a change in the law sufficient to support a petition to reopen. There is little reason why this same analysis would not apply to the methodologies enunciated by Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School Dist.(2009) 74 Cal. Comp. Cases 1084 (Almaraz II) and Milpitas Unified School Dist. v. WCAB (Guzman) 187 Cal.App.4th 808 [75 Cal. Comp. Cases 837]. This could have significant implications for the workers' compensation process. In virtually any claim where the permanent disability determination was made based on a "strict" application of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), if the applicant is still within five years of his or her injury date, the applicant could use these cases for establishing "good cause" and seek to have his or her permanent disability re-calculated using one or all of these approaches.


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


Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates or by the LexisNexis® editorial consultants who review panel decisions.


This article will appear in an upcoming issue of the California WCAB Noteworthy Panel Decisions Reporter.


© Copyright 2011 LexisNexis. All rights reserved.

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NPDDesigned specifically for subscribers only, this monthly reporter saves you research time so that you can quickly find recent panel decisions on key topics.


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; and (2) Print version, which can be stored in a binder.
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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 any linking problems to

September 6, 2011: QME Panel Requests
August 29, 2011: A Primer on Depositions
August 22, 2011: Vocational Expert Evaluation
August 15, 2011: Supreme Court COLA Decision
August 8, 2011: Administrative Director Rosa Moran Interview
August 1, 2011: Ogilvie: Reversed and Remanded
July 25, 2011: Liens: The Tribble Factor
July 18, 2011 (Special Alert): Valdez En Banc
July 18, 2011: Should Calif. Adopt the AMA Guides Sixth Edition?

July 11, 2011: QME Regulations: Face to Face Meetings

July 5, 2011: PQME Supplemental Reports

June 27, 2011: An MPN World: Change of Treating Physician

June 20, 2011: Sanctions: Three-Cent Dispute

June 13, 2011: A Balanced Approach to Litigation

June 6, 2011: Post-Valdez Defense Protocols

May 31, 2011: Stress-Related Compensable Consequence Injuries

May 23, 2011: Developing the Record

May 16, 2011: Overpayments

May 9, 2011: Third Party Cases

May 2, 2011: Temporary Total Disability

April 25, 2011: Non-MPN Physician Reports

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

April 18, 2011: 2011 Alphabet Soup

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

April 11, 2011: Rule 38 and Medical Examiner Reports

April 4, 2011: Penalties Post SB-899

March 28, 2011: Verification and Lien Claimants

March 21, 2011: Workers' Comp and Earthquakes

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

March 14, 2011: LC 5710 Attorney's Fees

March 7, 2011: Mediation

February 28, 2011: Arbitrations
February 21, 2011: AMA Guides Rating: Roles of Rater, Judge, Physicians
February 14, 2011: In Memoriam: Carrie Nevans
February 7, 2011: Good Faith Personnel Actions
January 31, 2011: Service in EAMS

January 24, 2011 (addendum): Sanctions; EAMS rules
January 24, 2011: Public Self-Insured Employers 

January 17, 2011: CHSWC Report on Liens 

January 10, 2011: Temporary Workers 

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



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