August 16, 2023

California: Nunes and the Path Forward: The Use of Vocational Evidence in Determining Permanent Disability and Apportionment

By Hon. Marguerite Sweeney, Former Commissioner, California Workers’ Compensation Appeals Board In the recent en banc decision Nunes v. State of Calif, DMV (2023) 88 Cal. Comp. Cases 741 , the Appeals Board concluded that the concept of “vocational apportionment” is not legally cognizable, while emphasizing that substantial vocational evidence can be necessary to achieve an accurate overall PD rating...

July 31, 2023

CWCI: California Workers’ Comp Independent Medical Reviews Increased in First Half of 2023

Oakland, CA – A new California Workers’ Compensation Institute (CWCI) review of the Independent Medical Review (IMR) process used to resolve California workers’ comp medical disputes shows that after hitting an all-time low high in 2022, the number of IMR decision letters rose 4.1% in the first six months of 2023 compared to the first half of 2022, though the number of letters and individual decisions...

July 25, 2023

California Compensation Cases July 2023

CALIFORNIA COMPENSATION CASES Vol. 88, No. 7 July 2023 A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review CONTENTS OF THIS ISSUE LexisNexis Online Subscribers: You can link to your account on Lexis+ to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel...

July 24, 2023

California: Precursor to Nunes En Banc Similarly Rejects the Concept of Vocational Apportionment

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board The workers’ compensation community has been abuzz since the Appeals Board issued its most recent en banc decision, Nunes v. State of California Dept. of Motor Vehicles (Nunes) (June 22, 2023) 88 Cal. Comp. Cases 741 [ 2023 Cal. Wrk. Comp. LEXIS 30 ]. There is no question that Nunes...

July 20, 2023

A Guide to Understanding Workplace Violence and Florida Workers’ Compensation

By Richard T. Fuerst and Robert J. Grace, Jr., Bleakley Bavol Denman & Grace, Tampa, Florida I. Introduction Workplace violence is a disturbing issue that can have severe consequences for employees, employers, and the customers they interact with. Nationwide workplace violence seems to arise with greater frequency. Unfortunately, acts of violence can occur in any industry; therefore, the Florida’s Workers’...

July 17, 2023

California: Top 25 Noteworthy Panel Decisions (January through June 2023)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2023. The first part of this year yielded a number of cases involving COVID-19 claims, in which the WCAB addressed the parties’ burdens of proof in situations where the presumption of industrial causation applies and in those where...

July 13, 2023

California: CWCI Report Identifies Low-Volume/High-Cost Musculoskeletal and Ulcer Drugs

Oakland, CA – Part III of the California Workers’ Compensation Institute’s (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers highlights three Musculoskeletal Drugs and three Ulcer Drugs that represent a small share of the prescriptions in their therapeutic drug groups, but due to high average payments, have become cost drivers, consuming a disproportionate...

July 11, 2023

California: The Shipley Doctrine: What Is the Current Hoopla About?

The Shipley doctrine remains viable, and the Appeals Board will apply it broadly to ensure that petitioners are not deprived of due process. By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board Thirty-one years ago, the Court of Appeal issued its decision in Shipley v. Workers’ Comp. Appeals Bd. (Shipley) (1992) 7 Cal. App. 4th 1104...

June 29, 2023

COVID-19’s Impact on the California Workers’ Compensation System: WCIRB Updates Its March 2022 Study

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board The California Workers’ Compensation Insurance Rating Bureau (WCIRB) has followed up with significant updates to its March 2022 study on medical treatments and costs of COVID-19 claims. Background In March 2022 the WCIRB released its study entitled, “Medical Treatments and...

June 26, 2023

California: How the Appeals Board En Banc Decision in Nunes Affects Attorneys and WCJs

On June 22, 2023, the Appeals Board issued an en banc decision in Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal. Comp. Cases __, 2023 Cal. Wrk. Comp. LEXIS 30 , in which the Appeals Board made it clear that there is no such thing as “vocational apportionment” when a party seeks to rebut a strict rating under the 2005 Permanent Disability Rating Schedule (PDRS) using a vocational expert...

June 22, 2023

California Compensation Cases June 2023

CALIFORNIA COMPENSATION CASES Vol. 88, No. 6 June 2023 A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review CONTENTS OF THIS ISSUE LexisNexis Online Subscribers: You can link to your account on Lexis+ to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel...

June 22, 2023

California: Going and Coming Rule; Required Vehicle Exception

Grey v. Comfort Keepers Health Care This case could have been decided either way—compensable or a regular commute from home to work. The fact that the employee could select or reject the assignment for home health care leads one to believe that the assignment was optional in the first place. Why place liability for workers’ compensation benefits when an assignment is entirely optional by the employee? Driving...

June 19, 2023

CWCI Reviews Initial Data on California Private Self-Insureds' 2022 Claim Experience

Oakland, CA – California workers’ comp private self-insured claim frequency rose 6% last year as both medical-only and indemnity claim volume increased, but a California Workers' Compensation Institute (CWCI) review of initial data from the state Office of Self-Insurance Plans (OSIP) suggests that many of the claims may have been low-cost COVID-19 cases, as private self-insureds’ average paid and...

June 14, 2023

CWCI Assesses the Impact of Proposed Change to California Workers’ Comp TD Cap

Oakland – A proposal to alter California’s 104-week cap on temporary disability (TD) benefits by excluding TD paid or due during the resolution of medical disputes if a utilization review (UR) treatment denial is overturned by independent medical review (IMR) or the Appeals Board would drive up IT and administrative expenses for claims administrators but provide only a nominal increase in total TD to less...

June 08, 2023

California: Board Panel Grants Applicant’s Request to Self-Administer MSA

In an apparent case of first impression, a Board panel granted an applicant’s petition to modify the terms in a previously approved Compromise and Release (C&R), to allow a change in the administration of his Medicare Set-Aside (MSA) account from a third party custodial administrator to self-administration. The decision includes a determination of jurisdiction vis-à-vis Labor Code sections 5803 and 5804...

May 25, 2023

California Compensation Cases May 2023

CALIFORNIA COMPENSATION CASES Vol. 88, No. 5 May 2023 A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review CONTENTS OF THIS ISSUE LexisNexis Online Subscribers: You can link to your account on Lexis+ to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel...

May 25, 2023

The Impact of Climate Change on Workers and Employers: The California Experience

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board In 2022 there were 7,490 wildfires in California. They burned 362,455 acres, destroying homes and businesses and causing 9 fatalities. In large part, these wildfires can be attributed to 15 years of severely dry conditions in the State. [ 1 ] Then between December 31, 2022, and March 26, 2023...

May 25, 2023

Temporary Workers’ Employment and Income Risks After Workplace Injuries

By Christopher Mahon Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study examines the many details and variables of this question. The study was conducted by Nicholas Broten of the Pardee RAND Graduate School, Michael Dworsky of the RAND Corporation, and David Powell of the RAND Corporation,...

May 25, 2023

California: No Ex Parte Communication with AME by Family Member

Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below. CA - NOTEWORTHY PANEL DECISIONS Copyright 2023 by Matthew Bender & Company, Inc. William Arey , Applicant v. Magic Mountain, LLC, Hartford Accident and Indemnity Company, administered by Broadspire, Defendants W.C.A.B. No. ADJ10266237—WCAB...

May 22, 2023

CWCI Spotlights Low-Volume/High-Cost Dermatologicals, Opioids & Antidepressants

Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs, three Opioids, and three Antidepressants that represent a relatively small share of the prescriptions within their therapeutic drug group, but due to high average reimbursements, have become cost drivers, consuming a...

May 16, 2023

California: When QME in One Specialty Defers to Other Specialties

Here’s a noteworthy panel decision in which the Appeals Panel ordered additional panel QMEs. Read our headnote below. CA - NOTEWORTHY PANEL DECISIONS Copyright 2023 by Matthew Bender & Company, Inc. Rochelle Boyd , Applicant v. Visser, National Interstate Richfield, Defendants W.C.A.B. No. ADJ11629744—WCAB Panel: Commissioners Dodd, Capurro, Deputy Commissioner Schmitz Workers’ Compensation...

May 15, 2023

CWCI Report Provides A Detailed Look at California WC Medical Dispute Resolution

Oakland, CA – As state lawmakers debate legislation that revisits the California workers’ compensation medical dispute resolution process, a new California Workers’ Compensation Institute (CWCI) Report to the Industry finds that the number of independent medical reviews (IMRs) used to resolve medical disputes hit a record low in 2022 as prescription drug disputes continue to decline, and that a small subset of doctors...

May 11, 2023

California: Permanent Disability Rating and Pyramiding

Here’s a noteworthy panel decision on permanent disability rating and pyramiding. Read our headnote below. CA - NOTEWORTHY PANEL DECISIONS Copyright 2023 by Matthew Bender & Company, Inc. Terri Glasgow , Applicant v. Massie Diagnostic Imaging, State Compensation Insurance Fund, Defendants W.C.A.B. Nos. ADJ1651527 (SBR 0314707)—WCAB Panel: Commissioners Dodd, Capurro, Snellings Workers’...

May 03, 2023

California: Burden of Proof in COVID-19 Injury AOE/COE Case

Here’s a noteworthy panel decision in which the WCAB rescinded the WCJ’s decision in a COVID-19 injury AOE/COE case, where the COVID-19 presumption of injury did not apply. Our case headnote is below. CA - NOTEWORTHY PANEL DECISIONS Copyright 2023 by Matthew Bender & Company, Inc. Elsa Garcia, Joffre Garcia (Deceased) , Applicant v. U.S. Bank, Old Republic, Defendants W.C.A.B. No. ADJ14627934—WCAB...

April 27, 2023

California: Dual Employment in the Context of PEO Lease-Back Situations

Here’s an interesting noteworthy panel decision that addresses the issue of dual employment in the context of PEO lease-back situations. Our headnote is set forth below. CA - NOTEWORTHY PANEL DECISIONS Copyright 2023 by Matthew Bender & Company, Inc. Jesus Ortega Gonzalez , Applicant v. Major Transportation Services, Inc., a California Corporation, Baljinder S. Gill, individually, and dba Major Express...