California Banner 2012 Chess Board
Vol. 3, Issue 6

Find Solutions & Strategies                           February 6, 2012

Burden of Proof Close upApportionment
So you think you know who has the burden of proof on apportionment?
In This Issue
* NEWS HEADLINES: Insurer profitability improved in 2010

A Note From the Editor

Robin Kobayashi 2010

Dear WC Professionals:  


Are you attending the DWC Conference in Los Angeles this month? I've got some great deals for you if you visit me at the LexisNexis booth. Details forthcoming.



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

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So You Think You Know Who Has the Burden of Proof on Apportionment? Prior to Senate Bill 899, the law was clear as to which party had the burden of proof on the apportionment issue. If defendant could not provide substantial evidence that there was either pre-existing PD or a progressive disease process, apportionment could not be found. In other words, it was unequivocally defendant's burden to prove up apportionment (See Pullman Kellogg v. Workers' Comp. Appeals Bd. (1980) 26 Cal.3d 450, 454, 605 P.2d 422, 161 Cal. Rptr. 783, 45 Cal. Comp. Cases 170).


Now, despite more recent citations to Pullman Kellogg in such cases as Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 71 Cal. Comp. Cases 1229, and others, a legitimate question can be asked as to whether it is still strictly defendant's burden to prove apportionment. The question is whether the issues of PD and apportionment have become so intertwined, that applicant must now "prove up" that aspect of the PD he believes is caused by non-industrial causes if he wants to recover the PD he believes was caused by the industrial injury. > Read more subscribers can link to the citations in this article.

going and coming rule

Going and Coming Rule; Privately Owned Vehicle. WCAB affirmed WCJ's finding that applicant/firefighter I's claim for internal and brain injuries suffered in a traffic accident while en route to his fire station was not barred by "going and coming" rule, even though applicant was using his privately owned vehicle (POV) at time of accident, when WCAB found that all firefighter I's were authorized via signed document to use their POVs on state business, that it was common practice for applicant and other firefighters to have to travel from one fire station to another based on staffing needs at any time during their three-day duty schedule and 90 percent of firefighters used their POVs for such travel, that firefighters needed to be fully mobile and prepared to travel on short notice without being delayed by attempts to find a state vehicle for their travel, and that applicant's use of his POV was of obvious benefit to defendant in that mobility provided to applicant during his work shifts was essential for performance of his firefighting duties. See Castro panel decision.


1652 banner subscribers: Get the cutting edge on case law. Subscribe today to the California WCAB Noteworthy Panel Decisions Reporter.

cms approval of set-asides

Teddy SnyderFour Reasons to Avoid the CMS Approval Process for MSAs, by Teddy Snyder, Esq.

1. MMSEA reporting makes approval unnecessary for Medicare beneficiaries. Reporting under the Medicare, Medicaid and S-Chip Extension Act, aka "section 111 reporting", started January 1, 2010 for workers compensation claims where there is "Ongoing Responsibility for Medical" for a Medicare enrollee. Carriers and self-insureds now report certain data at the beginning of the claim. This data includes the claimant's Medicare HICN (Health Insurance Claim Number), date of incident and the applicable ICD (International Classification of Diseases) codes. The result is that if a claimant treats non-industrially and presents a Medicare card for proof of insurance, when the provider bills Medicare, the invoice will be rejected. > Read more

a national expert's year in review

Tom Robinson thumbnailThomas A. Robinson on 2011 Year in Review: Top 10 Issues in Workers' Compensation Law


In this LexisNexis Emerging Issues Analysis article, Thomas A. Robinson analyzes the top 10 workers' compensation events for 2011 on a national level, with an eye to the hot button issues for 2012.


Robinson's top 10 list covers:

1. Injuries to Telecommuters.

2. Opioid Abuse in Treatment of Injured Workers.

3. Mental Injuries Within the Work Environment.

4. Dealing With an Aging Workforce.

5. Medicare Set-Aside Arrangements.

6. Employment of Illegal Aliens.

7. ObamaCare - How Will It Affect Workers' Compensation?

8. Weak Economy.

9. Use of AMA Guides.

10. Continued Efforts to "Reform" Workers' Compensation Law.


> Read the abstract


You can purchase the article at the LexisNexis Bookstore. subscribers can access the complete commentary, 2011 Year in Review: Top 10 Issues in Workers' Compensation Law. (approx. 19 pages) Additional fees may be incurred.

blogs at the lexisnexis workers' comp law community 


Fraud Sign

Workers' Comp Fraud Blotter -  Bullet Holes Lead To Arrest Of Bus Driver For Fraud and Making False Robbery Report, by LexisNexis Workers' Compensation Law Community Staff. Read it.




Cal Comp CasesApplicant Prevails on Exceptions to Post-Termination Claim Defense: Cal. Comp. Cases January Advanced Postings. Here's the first advanced posting for the February 2012 issue of Cal. Comp. Cases. subscribers can access the complete summary. Read it.


CA: RAND Releases Report on California Injury, Illness Prevention Program.

CA: CWCI Report Based on NAIC Data Shows Insurer Profitability Improved in 2010.

CA: DWC Posts Reports on Alternative Dispute Resolution/Carve Out Program.

CA: DWC Posts Fee Schedule Changes for Outpatient Hosp/Ambulatory Surgical Centers.

CA: 114 Former Cincinnati Bengals' Claims Could Cost Hundreds of Millions.

CA: State Posts Several Workers Compensation Judge Positions.

CA: Embattled Fullerton Police Chief Retires With $140K Workers Comp Settlement.

CA: Atlas General Insurance Names Zambrana Asst. Vice President, Controller.

Work Loss Data Institute Publishes New Edition of ODG Treatment, Diabetes Guidelines.

EEOC Says Record Number of Complaints Filed in 2011, Retaliation As Most Frequent Charge.

NIOSH Examines Heart Disease for Pro Football Players.

Marijuana Mouth Spray Drug Currently Being Tested.

FCCI Insurance Group Expands Into Maryland and Texas.

Alliant Insurance Acquires NY-based Retirement Planning Services Brokerage Firm.

American Financial Group Releases 4Q 2011 and Full Year Results.

CIGNA Reports Full Year 2011 Results, Projects Strong Growth in 2012.

enewsletter archives

Take a deep dive into our past eNewsletters for 2012 and prior...warning - some links to articles may not any linking problems to

January 30, 2012: Medical Provider Networks 101: A Trio of Recent Panel Decisions.
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