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Vol 2, Issue 43

Find Solutions & Strategies                         October 24, 2011

Masks Tragic ComedyThe PQME Process Runs Amok 
A tragic-comedy unfolds in a physician deposition
In This Issue
* SNEAK PREVIEW PANEL DECISION: Traumatic brain injury
* BLOG ROUND UP: Fraud, CCC's, Legislation

A Note From the Editor

Robin Kobayashi 2010

Dear WC Professionals: 


Thanks to our contributors for this issue: Robert G. Rassp, Esq., Julius Young, Esq., and Richard Jacobsmeyer, Esq.


We're almost sold out of our 2010 Edition of the Medicare Secondary Payer handbook. Be sure to purchase your copy now at the discounted price of $145 so that you can get the 2011 Edition for free. The price for the 2011 Edition is going up to $185. See box below.


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


1575 2011 cover 

New 2011 Edition

Has Gone to Press!


New content includes

Calif. WCMSA Requirements

By Robert G. Rassp, Esq.

Buy the 2010 Edition for $145; Get the 2011 Edtiion FREE.


Alert! Only 28 copies of the 2010 Edition left.  Act now to save $$.


To order, call 1-800-223-1940 and use Promotional Code JCM139695.


This offer ends 11/14/2011 or when the 2010 stock is depleted.
pqme process, by robert g. rassp, esq.

Robert Rassp grayThe PQME Process Runs Amok - A Tragic-Comedy, by Robert G. Rassp, Esq.


This story is true. The names were changed to protect the guilty. This story is a great example of what is wrong with the panel QME process under Labor Code sections 4062.1 and 4062.2.


There are many cases where claims administrators are paying for medical reports and deposition testimony from panel QME physicians that are not substantial evidence and would not hold up before a trial judge or the WCAB. This results in delays of resolving medical issues in our cases and causes increased costs for the claims administrators and employers.


When a new evaluating physician has to be selected because of an incompetent panel QME physician you receive in the end longer and unnecessary periods of payments of TTD benefits and double the costs of medical-legal evaluations. Not to mention increased defense attorneys fees. > Read more.

baker redux, by julius young, esq.

Julius Young thumbnailThe California Supreme Court has spoken again about COLAs. 


Call it Baker Redux.


In response to a Petition for Rehearing filed by San Jose attorney Arthur Johnson, the California Supreme Court issued a modified opinion that can be found here.


Johnson's Petition for Rehearing had noted that the Baker decision, issued in August 2011, used the term "seamless transition" in reference to the transition from temporary disability benefits (which have a COLA under Labor Code 4453) to permanent total disability benefits (which have a COLA in certain circumstances under Labor Code 4659(c).

> Read more.

baker modified, by RICHARD M. JACOBSMEYER, ESQ. 

Shaw Jacobsmeyer NEW VERSIONSupreme Court Declines Rehearing in Baker, Modifies Opinion Without Change in Result. The California Supreme Court has issued its decision denying the Petition for Rehearing filed by applicant in Baker v W.C.A.B. (XYZZX)


The court did make some modifications to its opinion that to some extent addressed the issues raised in applicant attorney's Petition but to some extent the Court's language suggests a lack of understanding of some aspects of workers' compensation. > Read more.

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sneak preview: recent panel decision

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


Permanent Disability; Rating; Total Disability. WCAB rescinded WCJ's finding that applicant with traumatic brain injury was entitled to award of 88 percent PD, after apportionment, based upon recommended rating, and held that applicant was entitled to an award of 100 percent PD without apportionment, when both AME and WCJ determined that applicant was totally precluded from open labor market, WCAB stated that cases of presumptive PTD under LC 4662 may be treated differently than cases in which there is a finding of PPD (up to 99.75%) under LC 4660, as evidence by fact that there are separate sections for computing disability payments in cases of partial disability (LC 4658(d)) and total disability (LC 4659(b)), that WCJ's finding of PPD was not supported by substantial evidence, and that in cases of presumed PTD pursuant to LC 4662, apportionment does not make sense unless percentage of PD could exceed 100 percent. See Edwards 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.
blogs at the lexisnexis workers' comp law community 


Fraud Sign

Workers' Comp Fraud Blotter -  Claimant Caught On Video Roofing Before Attending His Workers' Comp Hearing, by LexisNexis Workers' Compensation Law Community Staff. Read it.




Cal Comp CasesRebuttal of the AMA Guides - Cal. Comp. Cases October Advanced Postings (10/21/2011). Here's the fourth batch of advanced postings for the October 2011 issue. subscribers can link to the complete headnotes and summaries. Read it



CWCICWCI Summarizes 2011 California Workers' Comp Enacted Legislation, by California Workers' Compensation Institute. Read it.




Workers' Comp Executive:

FLASH: Cal/OSHA: Serious Cites Easier To Give Says Chief Council. 

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


Other News:  

CA: DWC Says Temporary Total Disability Rate to Increase to $1,010.50 in 2012.

CA: Investigators Issue Stop Work Orders to 31 Businesses for Failure to Carry Workers Comp Insurance.

CA: Amended Office of Self Insurance Plans Regulations Become Effective 10/19/2011.

CA: US DOL Says California Workplace Fatalities Dropped in 2010.

NCCI Requests Workers Comp Rate Increases in 19 States This Year.

US Dept of Labor Releases 2010 Workplace Injuries and Illnesses Statistics.

Travelers CEO Says Workers Comp Line Had Highest Level of Rate Increase.

US Senators Introduce Bill to Reform Medicare Secondary Payer System.

NIOSH Says Silicosis Continues to Persist, Exposure to Crystalline Silica Exceeding Permissible Limits Regularly Documented.

US: Dem Lawmakers Re-Introduce Bill to Stop Worker Misclassification.

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

October 17, 2011: Supplemental Job Displacement Benefits.
September 26, 2011: The Neutral Risk Doctrine.
September 6, 2011: QME Panel Requests.
August 29, 2011: A Primer on Depositions.
August 15, 2011: Supreme Court COLA Decision.

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

July 5, 2011: PQME Supplemental Reports.

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 18, 2011: 2011 Alphabet Soup.

April 11, 2011: Rule 38 and Medical Examiner Reports.

April 4, 2011: Penalties Post SB-899.

March 21, 2011: Workers' Comp and Earthquakes.

March 14, 2011: LC 5710 Attorney's Fees.

March 7, 2011: Mediation.

February 28, 2011: Arbitrations.

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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