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Vol 2, Issue 39

Find Solutions & Strategies                    September 26, 2011

Liquor StoreThe Neutral Risk Doctrine 
WCAB panel applies doctrine to decedent shot and killed by unknown assailant while working in liquor store
In This Issue
* TOP 25 BLOGS FOR 2011
* NEWS HEADLINES: Premium hikes linked with stock losses

A Note From the Editor

Robin Kobayashi 2010

Dear WC Professionals: 


It's time for our annual Top 25 Blogs awards. The deadline for your suggestions is Oct. 21.


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


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.

neutral risk doctrine

This is a sneak preview of a recent panel decision that will be added to the LexisNexis database:


In Rincon v. Kyung Hee Lee and Se Hyung Lee, individually and dba South Bay Liquor & Market (ADJ2043103), 2011 Cal. Wrk. Comp. P.D. LEXIS --, a WCAB panel denied reconsideration of the WCJ's finding that the widow of a worker who was shot and killed during the course of his employment as a clerk at a liquor store met her burden of proving that her husband's injury was compensable based upon application of the "neutral risk" doctrine.


Evidence offered on the issue of compensability in Applicant's death claim included a film depicting Decedent being shot at close range. The assailant was caught on film from a camera in the liquor store but his features were obscured, and film taken from a nearby gas station, although showing various individuals going in and out of the liquor store, was too unclear to provide any information. > Read more.
medical reports as evidence

Colleen CaseyLast fall, we issued a blog discussing Rule 8 CCR 10629 which sets forth the perimeters for filing exhibits in EAMS for trial. The rule requires that all parties create and serve a list of the exhibits they plan to offer as evidence at trial, preferably at the mandatory settlement conference (MSC), but no later than the day of trial. Each exhibit on the list should be identified by author, date, and title. In addition, each medical report must be identified as a separate exhibit, such as:


Exhibit "A," Dr. Zeus' AME report of 3/17/10

Exhibit "B," Dr. Zeus' Supplemental AME report of 7/1/10

Exhibit "C," Dr. Zeus' 2nd supplemental AME report of 3/5/11

Exhibit "D," Dr. Horton's treating doctor report of 1/23/11


> Read more.


Top 25 Blog Cut OutThe Workers' Compensation Law Community's Top 25 Blogs for 2011 - A Call for Your Suggestions. Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry.


The time has arrived for the LexisNexis Workers' Compensation Law Community Staff to make selections for its annual Top 25 Blogs for Workers' Compensation and Workplace Issues.


As always, we want to honor ongoing achievement by blogsites as well as point out the best newcomers.


Some of the things we review are: the quality of writing, frequency of posting, topics covered, interaction with the Internet community, format and design of blogsite, impact on workers' compensation and workplace issues, Google ranking and/or mentions by other sites.


The LexisNexis Workers' Compensation Law Community Staff will review all comments through October 21, 2011, and then make final determinations for the top 25 blogs and announce the honorees on the web center. Click here to find out how to talk up your favorite blog!

legislative  round up: updated 9/22/2011
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)

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

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)


> Read more.

blogs at the lexisnexis workers' comp law community 


Fraud Sign

Workers' Comp Fraud Blotter - Painter Who Defrauded September 11th Compensation Fund Must Pay $3 Million,  by LexisNexis Workers' Compensation Law Community Staff. Read it.




Cal Comp CasesCal. Comp. Cases September Advanced Postings (9/22/2011). Here's the fourth batch of advanced postings for the September 2011 issue. subscribers can link to the complete headnotes and summaries. Read it.




Workers' Comp Executive:

FLASH: CE Credit Offered for Rate Hearing on California Workers Comp.

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


Other News:

CA: Cal Chamber Report Says Calif Economy Getting Better.

CA: RAND/UCLA Study on Carpal Tunnel Syndrome, New Tools for Improving Care.

CA: Insurance Commissioner Jones Named One of Calif's Top 100 Lawyers.

CA: Adam Dombchik Wins State Bar Award: Applicant's Attorney of the Year.

CA: WCIRB Releases Report on Second Quarter 2011 Insurer Results.

CA: West Covina Woman Arrested for Workers Comp Fraud.

Study Says Workers Comp Premium Hikes Linked With Stock Losses, Not Claims.

Experts Warn of Emerging Issues: Mobile Workforce, Claim Closure, Medicare, Deficit.

IRS Announces "Fresh Start" Voluntary Worker Classification Settlement Program.

Study Questions Any Links Between Chronic Fatigue and Certain Viruses.

US Data Indicates Drug Deaths Outnumber Traffic Fatalities.

US Dept of Labor OSHA Releases Updated Whisteblower Investigations Manual.

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

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 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)

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)

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)

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

neutral risk, cont.


The investigators were unable to identify the assailant and testified at trial that they did not have sufficient evidence to conclude that the incident was an attempted robbery because the perpetrator did not try to take any money from the cash register. One officer admitted that the murder could have been gang-related, but was unable to offer an opinion as to motive without more information.


The WCJ stated in his Findings and Award that without evidence, determination of any motive in this case would be speculative.


Defendant contended in its petition for reconsideration that, on this record, the "neutral risk" doctrine should not have been invoked by the WCJ to find compensability, and that Applicant failed to sustain her burden of proof that Decedent's death arose out of his employment because no industrial motive for the shooting was established. Additionally, Defendant contended that the "neutral risk" doctrine only applies when the physical cause of an injury is mysterious, but not when the physical cause is known and the motive is unknown.


The WCJ, in his report on reconsideration, noted that the case law divides acts of violence into three categories of risk: purely personal, mixed and neutral. Purely personal risks are non-industrial, while neutral and mixed risks are considered to be industrial. The WCJ pointed out that although the applicant has the burden of proving injury, it is the defendant's burden to prove that the risk was purely personal. Here, Defendant was not able to provide any evidence establishing the assailant's motive in his attack on Decedent. Absent such evidence, the WCJ concluded that Decedent's death must be viewed as a mysterious circumstance, giving rise to application of the "neutral risk" doctrine and a finding of industrial injury.


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


Copyright 2011 LexisNexis. All rights reserved.

NPD reporter banner

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 19, 2011: Domestic Partners and Death Benefits
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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