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Herlick Handbook 31st Edition: Educating the California Workers’ Comp Community Since 1964

November 28, 2011 (7 min read)
LexisNexis Announces New Editors-in-Chief: Richard Jacobsmeyer, Julius Young, Barry Bloom
This 31st edition marks a transition in the history of Herlick, California Workers’ Compensation Handbook. Longtime author Stanford D. Herlick passed away in 2010, and the handbook is now co-edited by a defense attorney, Richard Jacobsmeyer, a partner at Shaw, Jacobsmeyer, Crain & Claffey LLP, a claims administration veteran, Barry Bloom of The bdb Group, and an applicant’s attorney, Julius Young, a partner at Boxer and Gerson LLP.
Many chapters in the handbook have been updated.
Chapter 16, formerly devoted to the vocational rehabilitation benefit, has been removed. A section on enforcing vested vocational rehabilitation rights has been added in § 13.8.
Chapter 16 now focuses on Supplemental Job Displacement Benefits.
The handbook references a number of significant appellate court and WCAB decisions rendered since publication of the 30th edition. A sampling of some of the cases now covered includes the following:
  • State Farm Insurance Co. v. W.C.A.B; Pearson (2011) (see § 4.16) (reasonableness of lien for housekeeping services)
  • Valdez v. Warehouse Demo Services (2011) W.C.A.B., en banc (see § 4.19A) (where unauthorized medical treatment is obtained outside a validly established and noticed network, reports from non-MPN physicians are not admissible and the employer is not liable for the cost of such reports)
  • Messele v. Pitco Foods, Inc. (2011) W.C.A.B., en banc (see § 14.4) (AME proposals, QME requests and timeliness)
  • Guitron v. Santa Fe Extruders (2011) W.C.A.B., en banc (see § 4.23, § 14.34) (access to interpreters)
  • Sherar v. Commissioner (2011) (see § 5.18) (taxation of workers’ comp offset monies)
  • Baker v. W.C.A.B. (2011) (see § 6.4) (reversing the Sixth District Court of Appeals decision in Duncan v. W.C.A.B., the Supreme Court finds that COLA calculations are to start prospectively the January 1 following the date when the worker is first entitled to receive, and actually begins receiving, such payments)
  • Coca-Cola Enterprises v. W.C.A.B; Espinoza (2011) (see § 6.6, § 9.5) (Labor Code 5814 penalties are based on the difference between the TTD rate to which the employee is entitled and the amount the employer actually paid to the employee)
  • In re Marriage of Ruiz (2011) (see § 6.6, § 10.4) (treatment of workers’ comp permanent disability proceeds in a contested divorce)
  • Ogilvie v. W.C.A.B. (2011) (see § 6.8) (reversing the en banc decision of the WCAB which had adopted a mathematical “Ogilvie formula”, remanding to the WCAB and setting forth three scenarios for rebuttal of the PD schedule)
  • Milpitas Unified School District v. W.C.A.B.; Guzman (2010) (see § 6.8) (affirming the WCAB en banc decision in Guzman, allowing rebuttal of the impairment component of the rating string where it is done “within the four corners of the Guides”)
  • Avila-Gonzalez v. W.C.A.B. (2010) (see § 6.8) (good cause to reopen to apply the 1997 PD Schedule in light of the Genlyte and Zenith cases where a prior WCJ determination that the 2005 PD schedule was applicable under the Vera case)
  • San Francisco Unified School Dist. v. W.C.A.B.; Cardozo (2010) (see § 8.21) (Labor Code 3208.3(b), good faith personnel action, and Rolda v. Pitney Bowes analysis)
  • Bigge Crane & Rigging Co. v. W.C.A.B.; Hunt (2010) (see § 9.7) (serious and willful misconduct)
  • SunLine Transit Agency v. Amalgamated Transit Union, Local 1277; Navarette (2010) (see § 12.11, § 13.4) (award by arbitrator under a bargaining agreement did not invade the exclusive jurisdiction of the WCAB)
  • Tverberg v. Fillner Construction, Inc. (2011) (see § 12.12) (application of Privette and Kinsman doctrine to hirers of subcontractors)
  • Alvarez v. W.C.A.B. (2010) (see § 14.4) and State Farm Insurance v. W.C.A.B.; Pearson (2011) (dealing with ex parte communications with QMEs)
This version of the handbook provides updates on DWC regulatory changes including paper billing regulations that go into effect in October 2011 and which beginning October 18, 2012, require electronic bill submission by healthcare facilities and providers (see § 4.19).
As the handbook went to publication, Governor Brown acted on a number of workers’ comp bills that had been passed by the legislature in 2011. Bills signed by Brown included the following:
  • AB 335 (Solorio) requires the AD to revise some DWC forms (see §§ 14.1, 14.3, 14.7, 14.9, 14.30)
  • AB 378 (Solorio) amends portions of Labor Code 139.3 and139.31, and also amends Labor Code 5307.1 (e) providing for pricing controls on compound drugs until the DWC adopts a fee schedule (see § 4.19)
  • AB 397 (Monning) requires contractors to prove that they are exempt from coverage or have workers’ comp coverage when renewing contractors’ licenses (see § 3.23)
  • AB 585 (Fong) extends the existing cancer presumption in Labor Code 32121 to non-federal employee firefighters working at NASA installations (see § 8.28)
  • AB 1168 (Pan) requires the DWC to adopt a vocational rehabilitation expert testimony fee schedule by January 1, 2013 (see § 4.23)
  • AB 1426 (Solorio) abolishes the position of workers’ compensation court administrator (see § 1.2)
  • SB 457 (Calderon) amends Labor Code 4903.1 to provide that where an employee obtains medical treatment pursuant to a medical plan provided by a self-insured employee welfare benefit plan, reimbursement shall be determined notwithstanding the official medical fee schedule adopted pursuant to Labor Code 5307.1. Such liens shall be paid pursuant to the terms of the self-insured benefit plan rather than the official medical fee schedule (see § 10.3).
  • SB 826 (Leno) amends Sections 138.6 and 138.7 of the Labor Code and provides for imposition of administrative penalties where a claims administrator violates reporting requirement regulations (see § 1.2)
In October 2011 Governor Brown vetoed four notable workers’ comp bills that had reached his desk after passage by the legislature:
  • AB 211 (Cedillo) would have modified the amount of the Supplemental Job Displacement Voucher and changed when the voucher was due
  • AB 584 (Fong) would have required that doctors performing utilization review be California licensed
  • AB 947 (Solorio) would have extended eligibility for TTD for up to 240 weeks (instead of 104 weeks) in some post-surgical cases
  • AB 1155 (Alejo) would have added language to Labor Code 4663 to prohibit discrimination in apportionment on account of race, gender, sexual orientation etc.
Detailed information on all of the 2011 legislation can be found on the legislature’s website, www.leginfo.ca.gov.
A NOTE OF CAUTION
As of the date this edition was finalized for publication, important California workers’ comp issues were pending. Readers are cautioned that late 2011 or 2012 developments in the courts, the legislature or at the DWC could affect California’s workers’ comp system. Pending “hot issues” as the edition went to press include:
  • how the WCAB will deal with Ogilvie v. Workers’ Comp. Appeals Bd., which was remanded to the WCAB, now that Ogilvie is here to stay (the Supreme Court denied review on October 26, 2011)
  • whether in light of Governor Brown’s veto messages with several comp bills, stakeholders will attempt to forge a compromise on another round of comprehensive reforms
  • what the DWC Administrative Director intends to do on revising the 2005 PD rating schedule
  • pending WCAB regulations on liens which were the subject of September 2011 hearings
  • how the new AD intends to proceed on other regulatory issues, including development of a new medical treatment fee schedule, possible changes in utilization review, and the QME process, etc.
To keep abreast of breaking developments, readers are advised to check the LexisNexis Workers’ Compensation eNewsletter (sign up for free with Robin.E.Kobayashi@lexisnexis.com) or some of the prominent workers’ compensation blogs which follow legislative and regulatory developments in California workers’ compensation law, including www.workerscompzone.com, written by co-editor Julius Young. For regulatory developments, readers can check the DWC website at http://www.dir.ca.gov/.
We highly recommend the California WCAB Noteworthy Panels Decisions Reporter, which is available through LexisNexis; it is a valuable tool to track developments in the law and the thinking of the WCAB commissioners.
REQUEST FOR COMMENTS:
The editors recognize that in any project such as this there is considerable room of disagreement on the individual points of the law and interpretation. Furthermore we recognize that our research may have missed important cases. For these reasons we ask all our readers to communicate any opinions, suggestions, errors noted or new cases of importance to us.
Editors-in-Chief
 Richard M. Jacobsmeyer, Esq.
Shaw, Jacobsmeyer, Crain & Claffey, LLP
jakejacobsmeyer@shawlaw.org
 Julius Young, Esq.
Boxer & Gerson, LLP
jyoung@boxerlaw.com
 Barry D. Bloom
The bdb Group
bdbloom@comcast.net
© Copyright 2011 LexisNexis. All rights reserved.
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