|
|
|
Find Solutions & Strategies September 26, 2011 |
|
The Neutral Risk Doctrine
WCAB panel applies doctrine to decedent shot and killed by unknown assailant while working in liquor store |
|
A Note From the Editor |

|
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.
Sincerely,
Robin E. Kobayashi, J.D.
LexisNexis Legal & Professional Operations
|

|
Ogilvie III Update and
PD Rating Secrets
November 5, 2011
OAKLAND, CA
 
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 |
Last 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 BLOGS FOR 2011 |
The 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 |
 California Workers' Compensation Legislative Round Up - 2011 Regular Session (as of Sept. 16, 2011) SIGNED BY GOVERNOR: 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) ENROLLED: 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 |
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. Cases September Advanced Postings (9/22/2011). Here's the fourth batch of advanced postings for the September 2011 issue. Lexis.com subscribers can link to the complete headnotes and summaries. Read it.
|
 |
 |
job posting: defense attorney position |
Ready 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 sbradford@bradfordbarthel.com. |
 |
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. |
 |
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)
DIED:
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. |
 |

|
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.
OCTOBER ISSUE NOW IN PRODUCTION
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 lexis.com; and (2) Print version, which can be stored in a binder. What it costs: List price - $204/yr. PRICE INCLUDES BOTH PRINT AND ELECTRONIC DOCUMENT |
 |
 |
enewsletter archives |
Take a deep dive into our past eNewsletters for 2011 and prior...warning - some links to articles may not work...report any linking problems to Robin.E.Kobayashi@lexisnexis.com.
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?
http://archive.constantcontact.com/fs077/1102828640660/archive/1106525994549.html
July 11, 2011: QME Regulations: Face to Face Meetings
http://archive.constantcontact.com/fs077/1102828640660/archive/1106451027759.html
July 5, 2011: PQME Supplemental Reports
June 27, 2011: An MPN World: Change of Treating Physician
http://archive.constantcontact.com/fs077/1102828640660/archive/1106168961873.html
June 20, 2011: Sanctions: Three-Cent Dispute
http://archive.constantcontact.com/fs077/1102828640660/archive/1105985996029.html
June 13, 2011: A Balanced Approach to Litigation
http://archive.constantcontact.com/fs077/1102828640660/archive/1105844751127.html
June 6, 2011: Post-Valdez Defense Protocols
http://archive.constantcontact.com/fs077/1102828640660/archive/1105783834099.html
May 31, 2011: Stress-Related Compensable Consequence Injuries
http://archive.constantcontact.com/fs077/1102828640660/archive/1105669474005.html
May 23, 2011: Developing the Record
http://archive.constantcontact.com/fs077/1102828640660/archive/1105575703257.html
May 16, 2011: Overpayments
http://archive.constantcontact.com/fs077/1102828640660/archive/1105406423234.html
May 9, 2011: Third Party Cases
http://archive.constantcontact.com/fs077/1102828640660/archive/1105318030890.html
May 2, 2011: Temporary Total Disability
http://archive.constantcontact.com/fs077/1102828640660/archive/1105244021985.html
April 25, 2011: Non-MPN Physician Reports
http://archive.constantcontact.com/fs077/1102828640660/archive/1105193487500.html
April 20, 2011 (Special Alert): Valdez En Banc
http://archive.constantcontact.com/fs077/1102828640660/archive/1105235321520.html
April 18, 2011: 2011 Alphabet Soup
http://archive.constantcontact.com/fs077/1102828640660/archive/1105150789071.html
April 11, 2011 (Special Alert): Hernandez significant panel decision
http://archive.constantcontact.com/fs077/1102828640660/archive/1105133131069.html
April 11, 2011: Rule 38 and Medical Examiner Reports
http://archive.constantcontact.com/fs077/1102828640660/archive/1105054845922.html
April 4, 2011: Penalties Post SB-899
March 28, 2011: Verification and Lien Claimants
http://archive.constantcontact.com/fs077/1102828640660/archive/1104894131044.html
March 21, 2011: Workers' Comp and Earthquakes
http://archive.constantcontact.com/fs077/1102828640660/archive/1104811663390.html
March 17, 2011 (Special Alert): Guitron En Banc
March 14, 2011: LC 5710 Attorney's Fees
http://archive.constantcontact.com/fs077/1102828640660/archive/1104743080821.html
March 7, 2011: Mediation
http://archive.constantcontact.com/fs077/1102828640660/archive/1104680877858.html
February 28, 2011: Arbitrations http://archive.constantcontact.com/fs077/1102828640660/archive/1104610163532.html
February 21, 2011: AMA Guides Rating: Roles of Rater, Judge, Physicians http://archive.constantcontact.com/fs077/1102828640660/archive/1104523390560.html
February 14, 2011: In Memoriam: Carrie Nevans http://archive.constantcontact.com/fs077/1102828640660/archive/1104442568858.html
February 7, 2011: Good Faith Personnel Actions http://archive.constantcontact.com/fs077/1102828640660/archive/1104364443854.html
January 31, 2011: Service in EAMS
January 24, 2011 (addendum): Sanctions; EAMS rules
http://archive.constantcontact.com/fs077/1102828640660/archive/1104294156793.html January 24, 2011: Public Self-Insured Employers
http://archive.constantcontact.com/fs077/1102828640660/archive/1104266393095.html
January 17, 2011: CHSWC Report on Liens
http://archive.constantcontact.com/fs077/1102828640660/archive/1104223885119.html
January 10, 2011: Temporary Workers
http://archive.constantcontact.com/fs077/1102828640660/archive/1104176109442.html
January 3, 2011: Permanent Total Disability & Total Loss of Future Earning Capacity
http://archive.constantcontact.com/fs077/1102828640660/archive/1104077989541.html
CLICK HERE TO ACCESS 2010 ARCHIVES. |
 |
LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Other products or services may be trademarks or registered trademarks of their respective companies.
Privacy & Security Copyright � 2011 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. |
|
|
|