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Vol 2, Issue 38

Find Solutions & Strategies                    September 19, 2011

Domestic PartnerDomestic Partners & Death Benefits 
WCAB panel rules against non-registered, same-sex, domestic partner
In This Issue
* RECENT PANEL DECISION: Attorney's fee calculations
* BLOG ROUND UP: Fraud, CCC's, Medical payments exeed pre-reform levels, Cases: Ogilvie, Motheral
* NEWS HEADLINES: CompWest President departs

A Note From the Editor

Robin Kobayashi 2010

Dear WC Professionals: 


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 Operations

WorkCompCentral Education thumbnail

 Ogilvie III Update and

PD Rating Secrets


November 5, 2011



Colleen CaseyRobert Rassp


Instructors: Judge Colleen Casey

& Robert G. Rassp, Esq. 


What did Ogilvie III do to change the methods of rebutting the DFEC? Bay area attorneys, paralegals and claims professionals will want to attend this redux of a Southern California program we put on last month.

The response to this seminar last month in Southern California last month was outstanding.

"Great review of Ogilvie rebuttal of DFEC," one attendee wrote.

"Great seminar as always with these two instructors," an attorney said.


Click here for details.

domestic partners
Domestic Partners and Death Benefits. When an industrial death occurs, a very difficult issue that must be sorted out is whether the decedent left any "dependents" behind. According to the California Labor Code, there are total dependents and partial dependents. The total amount of the death benefit to be awarded depends on the number of total and/or partial dependents. An interesting issue arises in these cases when trying to determine if a surviving domestic partner qualifies as a "surviving spouse", which, in turn, would qualify that surviving domestic partner to the conclusive presumption of total dependency. 


Labor Code Section 3501(b) provides as follows:


"A spouse to whom a deceased employee is married at the time of death shall be conclusively presumed to be wholly dependent for support upon the deceased employee if the surviving spouse earned thirty thousand dollars ($30,000) or less in the twelve months immediately preceding the death."


Recently, a panel of commissioners with the Workers' Compensation Appeals Board (WCAB) addressed the situation where a "domestic partner" was alleging to be a "surviving spouse" pursuant to Section 3501(b). In Rochelle Gladden (Deceased) v. State of California Department of Corrections & Rehabilitation (ADJ6739541), 2011 Cal. Wrk. Comp. P.D. LEXIS 214, the Workers' Compensation Administrative Law Judge (WCJ) had found that Ms. Jacobs was Ms. Gladden's domestic partner and dependent surviving spouse pursuant to Labor Code Section 3501(b).


Read more. subscribers can link to the cases, statutes, etc. cited in this article.

flash: governor's veto plans

Stamp NoGovernor Jerry Brown says he plans to "veto a lot of bills over the next 30 days" and that lawmakers should get ready to play the "veto blues". According to the Governor, "They've given me 600 bills and there's not 600 problems that we need those solutions for." Read the article at the San Francisco Chronicle 

legislative  round up
Capitol Sacramento

California Workers' Compensation Legislative Round Up - 2011 Regular Session (as of Sept. 16, 2011)



AB 1263 - prohibits SCIF officers and directors from engaging in lobbying or contracting activities for two years post employment with the State Fund (Chaptered version effective 1-1-2012)



AB 211 - provides supplemental job displacement vouchers to injured workers who are permanent and stationary, rather than when they receive a permanent disability rating (Enrolled version)

AB 335 - requires DWC to prepare a booklet on workers' compensation claims process (Enrolled version: PENDING)

AB 378 - caps the cost of compounded medications provided by physicians (Enrolled version: PENDING)


> Read more.


job posting: defense attorney position

Bradford Barthel logoReady for the Next Step in Your Career? Bradford and Barthel LLP, recognizes that our people make the difference and are our most important resource. We dedicate ourselves to continually attracting, retaining and developing exceptional and diverse attorneys. Our well-established firm has locations throughout the state, and we focus our expertise in all areas of the practice of workers compensation defense. Our attorneys work within their local venue therefore travel is close to home. We offer highly competitive compensation and benefit packages and a collegial, ethical working environment. We currently have an opening for a workers' compensation defense attorney at our San Diego location.


If you have 2+ years experience in defense work, and the desire to develop to your full potential, talk to us about your most important investment, your career. With Bradford and Barthel, you will be on the road to exciting professional challenges and opportunities. Please e-mail your resume to


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.


Attorney's Fees; Calculation. WCAB, affirming WCJ's finding that applicant's attorney was entitled to a fee equaling 10 percent of value of lifetime award of death benefits to decedent/police officer's mentally incapacitated young adult son, rejected applicant's attorney's position that he was entitled to a 13.7 percent fee based upon above average complexity of case, and that fee should have been calculated on present value of dependent son's award, which assumed a 4.7 percent annual COLA/SAWW increase, when WCAB found that (1) "reasonable" attorney's fee under Labor Code § 4906(d) should not be based strictly on present value of benefits awarded, as guidelines for determining reasonable fee set forth in WCAB's Policy and Procedure Manual section 1.140, as incorporated by 8 Cal. Code Reg. § 10775, contemplate consideration of multiple factors to determine fee, including time expended, care exercised, responsibility assumed, and results obtained, (2) applicant's attorney's calculation of present value of lifetime award was unreliable because he incorrectly assumed that, as with PTD benefits, COLA for death benefits payable at TD rate would continue throughout dependent's life, when in fact they do not continue indefinitely but are capped at two-thirds of injured employee's average weekly earnings at time of injury, (3) there was no basis for assumption that annual SAWW increase would be 4.7 percent, as SAWW has almost uniformly been less than 4.7 percent over eight years from 2004 through 2011, (4) there was insufficient evidence presented regarding time expended by applicant's attorney on applicant's case, and (5) WCAB could not conclude that WCJ erred in finding that case did not meet criteria for above average complexity so as to justify an attorney's fee greater than $150,436.74 (10 percent of $1,504,367.40 death benefit award) awarded by WCJ. See Munson 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 - Caterer Caught On Video Cooking and Coordinating Events While On Disability,  by LexisNexis Workers' Compensation Law Community Staff. Read it.




Cal Comp CasesCal. Comp. Cases September Advanced Postings (9/16/2011). Here's the third batch of advanced postings for the September 2011 issue. subscribers can link to the complete headnotes and summaries. Read it.



CWCICWCI Study Finds California Workers' Comp Medical Payments Exceed Pre-Reform Levels. Read it.




Shaw Jacobsmeyer NEW VERSIONOgilvie Petition to Supreme Court Pending, by Richard M. Jacobsmeyer, Esq. Read it.





Shaw Jacobsmeyer NEW VERSIONEarnings Includes Employer Provided Living Quarters and Benefit (Labor Code Sec. 4554), by Richard M. Jacobsmeyer, Esq. Read it.




Workers' Comp Executive:

FLASH: Zombies in the WCAB?.

FLASH: Bill Mudge Out at CompWest.

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


Other News:

CA: AIA Urges Governor to Veto Bills on UR, Apportionment, TD Cap.

CA: Judge Rules Three Chicago Bears Players Violated Contract by Seeking Workers Comp in California.

CA: CAAA Announces 2011-12 Leadership Team, Priorities for Coming Year.

CA: Santa Monica Employee Bargaining Units Agree to Reduce Workers Comp Benefits.

CA: The "Soda Machine" for Prescriptions Used by Workers Comp Claimants.

NCCI Publishes 2011 Workers Compensation Prescription Drug Study.

Experts Dispute Drug, Alcohol Impact on Workers Compensation Cases.

OSHA Issues Directive for Investigation of Workplace Violence Incidents.

NICB Reports 4.5 Percent Rise in First Half 2011 Questionable Claims.

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.

legislation, cont.


AB 397 - requires contractors to show proof of workers' compensation insurance coverage or to verify exemption (Enrolled version)

AB 436 - authorizes $4.3M loan from Uninsured Employers Benefit Trust Fund to start a DIR program to monitor prevailing wage issues in public works projects (Enrolled version: PENDING)

AB 584 - requires UR physicians to be licensed in California in order to provide Utilization Review Services and prohibit the use of physicians licensed only in other states (Enrolled version)

AB 947 - eliminates the 104 week cap on TTD for a limited number of cases involving surgery occurring after the 104 of payments had expired (Enrolled version: PENDING)

AB 1155 - prohibits consideration of race, religion, gender, age and other personal characteristics in apportionment to non-work related causes under Labor Code 4663 (Enrolled version: PENDING)

AB 1168 - adopts fee schedule for Vocational Experts in to cover reports and expert testimony (Enrolled version)

AB 1426 - eliminates the Court Administration position (Enrolled version: PENDING)

SB 127 - requires DWC to update CPT codes in the Official Medical Fee Schedule on an annual basis (Enrolled version)

SB 684 - requires insurers to disclose, when giving a written quote, any dispute resolution or arbitration agreement requiring the policy holder to resolve disputes outside of California, among other things (Enrolled version)

SB 826 - authorizes DWC to assess fines up to $5,000 a year against claims administrators that fail to comply with Workers' Compensation Information System reporting requirements (Enrolled version)



AB 375 - would have created presumption of compensability for hospital workers who contract blood-borne diseases

AB 465 - would have required landscaping or gardening business to show proof of workers' compensation coverage

AB 899 - would have required workers' compensation coverage, among other things, for home care service providers, including babysitters, nannies, and caregivers

SB 407 - would have limited specified workers' compensation benefits for jail inmates

SB 432 - would have required hotels to use fitted sheets on beds and provide hotel housekeepers with other tools to do their work

SB 863 - would have required all liens to be in writing and would have created a three-year filing deadline

SB 896 - would have set maximum reimbursement rate for certain spinal surgeries, among other things

SB 923 - would have required DWC to make transition to a resource-based relative value system (RBRVS) fee schedule

 domestic partners, cont.


On reconsideration, the defendant argued that Labor Code Section 3501(b) should not apply as the two women were not married or registered with the State as "domestic partners." In short, defendant argued that the surviving domestic partner should not be considered a "surviving spouse" for purposes of Labor Code Section 3501(b).


The commissioners granted reconsideration. At the outset, the commissioners observed:


"As can be seen, the WCJ concluded that Ms. Jacobs was entitled to the conclusive presumption of total dependency contained in section 3501(b) because she was Ms. Gladden's "domestic partner" and under Family Code Section 297.5(a) and (c) a domestic partner is to be treated the same as a spouse... The problem with the WCJ's analysis is that Ms. Jacobs was not Ms. Gladden's registered domestic partner as required and defined by Family Code section 297, which provides in pertinent part that, "A domestic partnership shall be established in California when both persons file a Declaration of Domestic Partnership."... In short, the expansive protections provided in Family Code section 297.5 only apply to registered domestic partners, and in this case it is admitted that Ms. Jacobs and Ms. Gladden never registered as domestic partners pursuant to California Law."


The commissioners then examined whether, the absence of a registered domestic partnership, whether Ms. Jacob's should be deemed a spouse based on the existence of a "meretricious" relationship. Citing a number of cases, including Marvin v. Marvin (1976) 18 Cal. 3d 660, Dept. of Industrial Relations v. Workers' Comp. Appeals Bd. (Tessler) (1979) 94 Cal. App. 3d 72 (44 Cal. Comp. Cases 591) and State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Donovan) (1984) 49 Cal. Comp. Cases 577 (writ denied), the commissioners acknowledged that though the cases support the proposition that such couples should not be penalized for choosing these types of relationships, no case or court has extended to such persons the full measure of rights and responsibilities that apply to individuals who are lawfully married or registered as domestic partners.


The commissioners proceeded to quote from a 2008 Supreme Court case, In re Marriage Cases 43 Cal. 4th 757, which, in turn quoted from a 1988 Supreme Court case, Elden v. Sheldon 46 Cal.3d 267, which emphasized the significance of a formal marriage:


"Our emphasis on the state's interest in promoting the marriage relationship is not based on anachronistic notions of morality... The policy favoring marriage is 'rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of person in organized society.' Formally married couples are granted significant rights and bear important responsibilities toward one another which are not shared by those who cohabit without marriage... Plaintiff does not suggest a convincing reason why cohabiting unmarried couples, who do not bear such legal obligations toward one another, should be permitted to recover for injuries to the partners to the same extent as those who undertake these responsibilities."


Thus, the commissioners concluded, a non-registered, same sex, domestic partner, is not entitled to the conclusive presumptions contained in Labor Code Section 3501(b). The panel declined to address whether the outcome would have been different if Ms. Jacobs was in fact registered with the State.


This case obviously raises several issues. In the context of a heterosexual couple living together with the "good faith" belief they are married, but who, in fact, are not legally married, the surviving spouse has been afforded the conclusive presumption of total dependency. What if a same sex couple believed they had formally registered with the State but had in fact not properly filed that paperwork? Would a "good faith" belief by a same sex couple that they had registered as "domestic partners" be sufficient for purposes of Labor Code Section 3501(b)? What if the same sex couple was totally unaware that they could "register" or that that might make same legal difference to them?


Subsequent to the WCAB's finding that Ms. Jacobs is not a "surviving spouse" for purposes of Labor Code Section 3501(b), Ms. Jacobs has filed a writ for review with the First District Court of Appeal. Given the nature of the issues involved, it will be interesting to see if the DCA grants Ms. Jacobs' writ, and if it does, how it chooses to address the issues involved.


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.
View sample: Click here
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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 12, 2011: Reopening a PD Award (Ogilvie as Change of Law)
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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