LexisNexis Calif. Workers' Comp eNewsletter: The Race for a QME Panel

Vol 2, Issue 40

Find Solutions & Strategies October 3, 2011

The Race to Request a QME Panel

WCAB en banc decision in Messele finally puts the issue to rest

In This Issue

* QME PANEL REQUEST

* RECENT PANEL DECISION: AMA Guides Ch. 15

* MSP & JERRY GARCIA

* MSP SPECIAL OFFER

* TOP 25 BLOGS FOR 2011

* BLOG ROUND UP: Fraud, CCC's, Private Self-Insured Claim Frequency & Costs

* DWC STAFF & JUDGES IN THE NEWS

* NEWS HEADLINES: Former PJ Greenblatt Has Passed Away

* LEGISLATION: Governor signs AB 436

* NEW JOB POSTING

* CITEABILITY OF PANEL DECISIONS

* PANEL DECISIONS REPORTER

* eNEWSLETTER ARCHIVES

Ogilvie III Update and

PD Rating Secrets

November 5, 2011

OAKLAND, CA

Colleen Casey Robert 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.

A Note From the Editor

Robin Kobayashi 2010

Dear WC Professionals:

We are saddened to hear about the passing of former Presiding Judge Larry Greenblatt. May he rest in peace.

Last Chance to Save $$. We've got about 60 of the MSP books left in our warehouse. Order the 2010 edition at the special discount rate of $145 and get the 2011 edition for free.

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

Sincerely,

Robin E. Kobayashi, J.D.

LexisNexis Legal & Professional Operations

robin.e.kobayashi@lexisnexis.com

qme panel: messele en banc

W.C.A.B. Provides Guidance on AME/QME Request Process Timing Issues, by Richard M. Jacobsmeyer, Esq. If there was ever a question the medical legal process in workers' compensation has become concerned with tactical minutia rather than dealing with substantive issues in the day to day comp practice, the W.C.A.B.'s en banc opinion in Tsegay Messele v. Pitco Foods, Inc.; California Insurance Company should certainly put the issue to rest. In its decision the W.C.A.B. addresses what has become a common practice dilemma of the race to request a QME panel with the reward being the ability to designate the "specialty" of the panel. This case illustrates the all too common AME/QME dance with the end point to manipulate the QME process to obtain a perceived advantage in the medical legal process. > Read more

SNEAK PREVIEW: 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.

Permanent Disability; Rating; AMA Guides. WCAB affirmed WCJ's finding that applicant/vending machine installer/delivery person incurred 24 percent PD as a result of his 10/3/2008 back injury based upon panel QME's 7/28/2010 report in which panel QME rated applicant's impairment by analogizing to a Class 2 rating for hernia impairments found in Table 6-9 of AMA Guides to produce a 15 percent WPI, when WCAB found that (1) panel QME's 7/28/2010 report satisfied requirements in Almaraz/Guzman II and was consistent with principles in Blackledge, delineating roles of physician, WCJ and DEU rater, (2) panel QME's 7/28/2010 report adequately explained rational for analogous rating, and rating accounted for injury's impact on activities of daily living, as opposed to work activities, as is required, (3) panel QME's analogy using DRE rating method as set forth in his 10/12/2009 and 11/1/2009 reports could not be relied upon because rating did not meet standards imposed by Almaraz/Guzman II, and (4) panel QME's 9/26/2010 supplemental report in which he used Table 15-9 to rate lumbar spine disabilities and concluded that using this Table produced 45 percent WPI did not constitute substantial evidence because panel QME did not adequately explain his opinion that Table 15-19 should be used rather than Table 6-9, and, according to holding in Almaraz/Guzman II, fact that a different rating method yields a higher rating should not be deciding factor in determining impairment. See Graham panel decision.

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

msp & the late, great jerry garcia

Peace Tie Dye Sign MSP Compliance and the Late, Great Jerry Garcia. This year marks the 10th anniversary of the Patel Memo, the memo that launched the Medicare Secondary Payer industry. We are forced to look back over the past decade and recognize just how far we have come. As the late, great Jerry Garcia would say, "What a long strange trip it's been". The Patel memo resulted in a lot of frenzy and confusion... > Read more

msp compliance special offer

The Complete Guide to Medicare Secondary Payer Compliance, by Jennifer C. Jordan, Esq.

BUY 2010 EDITION FOR $145 DISCOUNT PRICE; GET 2011 EDITION FOR FREE.

To order, call 1-800-223-1940 and use the PROMOTIONAL CODE JCM139695. Offer ends 11/14/2011.

TOP 25 BLOGS FOR 2011

The Workers' Compensation Law Community's Top 25 Blogs for 2011 - A Call for Your Suggestions. 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.

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!

blogs at the lexisnexis workers' comp law community

Fraud Sign

Workers' Comp Fraud Blotter - Slippery Slope: Injured Worker Received Benefits While Working Secretly As a Ski Instructor, by LexisNexis Workers' Compensation Law Community Staff. Read it.

Cal. Comp. Cases October Advanced Postings (9/28/2011). Here's the first batch of advanced postings for the October 2011 issue. Lexis.com subscribers can link to the complete headnotes and summaries. Read it.

CWCI California Private Self-Insured Claim Frequency Edged Down in 2010, But Average Claim Costs Rose, by CWCI. Read it.

DWC STAFF & judges in the news

> Denise Vargas is now the Chief, Programmatic Services at the DWC.

> Mark A. Fudem is now the Associate Chief Judge for EAMS.

> Elena Jackson is now a judge at the Marina Del Rey District Office.

> Jacqueline Duncan is now the Acting Presiding Judge for the San Francisco District Office.

> Christopher Hamilton is now the Acting Presiding Judge for the Oakland District Office.

> Elan Lambert is no longer a judge in the Marina Del Rey District Office.

> Susan Gard is no longer the Chief, Legislation and Policy. The position is now vacant.

NEWS HEADLINES

Workers' Comp Executive:

FLASH: Your Chance to Sound Off on Pure Premium Rates.

Other News:

CA: WCIRB Testifies at Dept of Insurance Public Hearing.

CA: ACIC Supports Insurance Commissioner's Push for WCIRB to Reevaluate Calculating Pure Premium Rates.

CA: Judge Grants Class Certification in San Diego Union Tribune Worker Misclassification Suit.

CA: DWC to Host Electronic Filing Expo at Van Nuys District Office Oct. 6.

CA: Editorial Says Many LA County Probation Officers, Employees Out on Workers Comp.

CA: DWC Prepares to Send Fraud Warning Notices to All System Participants.

CA: Larry Greenblatt, Former Presiding Judge at Ventura, Oxnard Boards, Has Passed Away.

NCCI Posts 2011 Claims Frequency Research.

CA: Governor Signs AB 436 to Monitor Prevailing Wage Issues in Public Work Projects.

CA: Rate of Machines Replacing Vineyard Workers Continues to Grow Each Year.

US Sup Ct to Hear LHWCA Case on Amount of Weekly Disability Benefits.

US Sup Ct Schedules Oral Argument for OCSLA Case on October 11.

Injured War Contractors File Class Action Suit Over Medical Treatment, Disability Benefits.

US Health Insurance Premium Costs Increased 9 Percent in 2011.

Obama Administration Seeks US Sup Ct Ruling on Healthcare Reform Law.

NIOSH Posts List of Hazardous Drugs in Healthcare Settings to Help Reduce Health Risks.

Unpaid Interns File Class Action Lawsuit Against Fox Searchlight Pictures.

Federal Training Manual on Handling Illness Claims Ridiculed U.S. Atomic Workers.

Industry Expert Releases Book for Employers on Saving Big on Workers Comp.

More Employers Move to Using On-Site Medical Clinics.

Nationwide Mutual Insurance Company to Acquire Harleysville Group Inc.

Coventry Health Care Partners With Walgreens, Walmart on New 2012 Medicare Prescription Drug Plan.

legislative round up: updated 9/30/2011

California Workers' Compensation Legislative Round Up - 2011 Regular Session (as of Sept. 30, 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)

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 (Chaptered version)

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)

> Read more.

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

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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.

OCTOBER ISSUE NOW IN PRODUCTION