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New 2011 Edition

By Jennifer C. Jordan, Esq.

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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

Lexis.com subscribers can link to the citations in this article.

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.

Four 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

Thomas 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.

Lexis.com 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.