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Vol. 5, Issue 8

Find Solutions & Strategies                                 February 24, 2014

Trial Practice and Procedure Post SB 863
 
Insights for litigating a case in the Post SB 863 era 
In This Issue
* SB 863 TRIAL PRACTICE
* SB 863 PQME SELECTION
* COCAINE USE & HEPATITIS C
* NEWS: Sen. Calderon indicted, Drobot admits illegal kickbacks, Ex-State Fund exec. admits conflicts of interest
* eNEWSLETTER ARCHIVES
A Note From the Editor

 Robin Kobayashi 2010

Dear Work Comp Community:

 

The Workers' Compensation Index, 2014 Edition, is now in its second printing. Thanks for your support!
 
Join our community. Sign up here to receive our free eNewsletter.

 

Sincerely,

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

 

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trial practice and procedure post sb 863

By David Bryan Leonard, Esq.

 

David Bryan LeonardAt the California Workers' Compensation Defense Attorneys' Association 2013 Winter Conference, a panel led by the Honorable Anne Horelly, defense attorney Sharon Renzi and applicant's attorney John Reff presented practical and procedural insights for litigating a case in the post SB 863 era. Judge Horelly began by asking "Where does the trial start". [Smartly, no one from the audience answered by saying "the Court House".] For applicants, Mr. Reff explained that the trial starts with the completion of the Application for Adjudication of Claim. Taking insight from the Court of Appeals unpublished opinion in Guild v. WCAB (1999) 64 Cal. Comp. Cases 175, Ms. Renzi explained that as a defense attorney, she likes to file Answers in response to the Application for Adjudication. In sum, all participants agreed that the "Trial" begins with the initial pleading presented by each side. Read more.

pqme assignment/selection post sb 863
SB 863 alert! A WCAB panel has held that the amended version of LC 4062.2 is applicable to injuries occurring before 1/1/2013, that the 10 days to strike a QME from a panel begins when the names of the panel assignment are mailed by the Medical Unit, and that the 10 days is extended by 5 days under CCP 1013 pursuant to Messele. This noteworthy panel decision will be added soon to the LexisNexis services.

 

Medical-Legal Procedure; Assignment and Selection of Panel Qualified Medical Evaluators. WCAB, dismissing defendant's petition for reconsideration as premature and denying removal, held that applicant/driver who incurred cumulative industrial injury to multiple body parts during period 5/7/2011 through 5/7/2012, timely exercised his right to strike members from replacement qualified medical evaluator panels in orthopedics and internal medicine assigned on 1/3/2013, when WCAB found that (1) process in Labor Code � 4062.2, as amended by SB 863, applied to 1/3/2013 panel qualified medical evaluator assignment and selection, because Labor Code � 4062.2 is procedural statute and, as such, is to be applied prospectively, and because, in SB 863 section 84, Legislature expressed intent to apply amendments to all pending cases, regardless of date of injury, (2) pursuant to discussion of Code of Civil Procedure � 1013 in Messele v. Pitco Foods, Inc. (2011) 76 Cal. Comp. Cases 956 (Appeals Board en banc opinion),...read more.

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NOTICE OF CORRECTION
The DWC has brought to our attention an error in Table 1, Present Value of Permanent Disability, in Workers' Comp Laws of California, 2014 Edition. Access a corrected table here. We apologize for the error and inconvenience.
california compensation cases
Cal Comp CasesCocaine Use, Not Needle Stick, More Likely Cause of Hepatitis C: February Advanced Postings. Lexis.com and Lexis Advance subscribers can read it. 
  
  
california news headlines

CA: Sen. Calderon, Brother Indicted on Public Corruption Charges.

CA: Hospital Owner Drobot Enters Into Plea Agreement, Admits Illegal Kickbacks.

CA: Ex-State Fund Exec Admits to Charges of Conflicts of Interest.

CA: DWC Posts Non-Substantive Changes to SJDB Voucher Forms.

CA: DWC Posts Adjustments to OMFS Physician/Non-Physicians Services.

CA: CHSWC Releases Annual Report.

CMS Changes Reporting Threshold for Liability Settlements, Judgments, Awards, Other Payments.

RIMS Submits Recommendations for Imposing SMART Act Tax Penalties for Noncompliance.

MARC Urges CMS to Issue Notice of Proposed Rulemaking to Implement SMART Act.

New Study: How Physicians Can Improve Lumbar Fusion Outcomes.

WCRI Study Identifies Medical Cost Drivers, Trends, Impact of Rule Changes in 16 States.

Accident Fund Holdings Offers Advice for Dealing With Pharmacy Benefit Managers.

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PQMEpqme, cont.

...Labor Code � 4062.2(c) allows party 10 days from assignment of qualified medical evaluator panel, plus 5 days for mailing, to strike name from qualified medical evaluator panel, (3) phrase in amended Labor Code � 4062.2(c), "assignment of the panel by the Administrative Director," should be construed to mean not only assignment, but also service of name of panel qualified medical evaluator on parties by U.S. mail, as mere "assignment" of panel would not provide parties with notice of names and related right to strike or forgo striking name, (4) reasoning in Alvarado v. W.C.A.B. (2007) 72 Cal. Comp. Cases 1142 (writ denied), that "assignment" alone triggers party's right to strike name, is flawed, as right to strike name would be meaningless unless identity of panel qualified medical evaluators are communicated to parties by Administrative Director via U.S. mail, (5) in assigning panels, Administrative Director is not necessarily bound by 8 Cal. Code Reg. � 10507, and since there is no Administrative Director Rule governing assignment and mailing of panel assignments, Code of Civil Procedure � 1013 is controlling and adds 5 days to time within which party may strike panel qualified medical evaluator name after panel is assigned, and (6) for 2012 injury and 1/3/2013 assignment of qualified medical evaluator panel, applicant's strike on 12th day was timely as it was within 15 days after assignment by Administrative Director. See Cabrera Razo panel decision.

enewsletter archives

ArchivesTake a deep dive into our past eNewsletters for 2014 and prior...warning - some links to articles may not work...report any linking problems to Robin.E.Kobayashi@lexisnexis.com.

February 18, 2014: Official Medical Fee Schedule vs. Usual and Customary Charges.
January 21, 2014: Replacing the Panel QME.
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