July 24, 2024

California Compensation Cases July 2024

CALIFORNIA COMPENSATION CASES Vol. 89, No. 7 July 2024 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 Lexis+ 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 decisions...

July 23, 2024

California: VR Experts Can Hit the Ball Out of the Park But Not Without Oversight from Doctors

Havanis v. Calif. Dept. of Transportation (Board Panel Decision) By Hon. Colleen Casey, Former Commissioner, California Workers’ Compensation Appeals Board I. Medical apportionment is not the same as VR apportionment Medical apportionment is a totally different concept from vocational apportionment. In sports terms, medical apportionment would be football, and vocational apportionment would be cricket. Football...

July 16, 2024

California: The Kite Case on Steroids: How to Rebut the Combined Values Chart

By Robert G. Rassp, author of The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (LexisNexis) Disclaimer: The material and any opinions contained in this treatise are solely those of the author and are not the opinions of the Department of Industrial Relations, Division of Workers' Compensation, or the WCAB, or any other entity or individual. The materials are intended to be a...

July 09, 2024

Fewer Claims But Higher Losses for California Workers’ Comp Private Self-Insureds

Oakland, CA – Private self-insured claim volume in the California workers' compensation system fell 9.5% in 2023, producing the biggest year-to-year decline in private self-insured claim frequency in more than 15 years, but double-digit increases in the average amounts paid and incurred on these claims drove total paid and incurred losses for private self-insured employers sharply higher according to a California...

July 08, 2024

Excessive Heat’s Impact on Workers and Employers

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board No matter the source of your media consumption, it seems that the topic of heat is everywhere. Stories about excessive heat have become ubiquitous. For example, on December 5, 2023, US News & World Report released an article calling 2023 the hottest year on record. (Smith-Shoenwelder...

July 08, 2024

California: WCAB’s New Guidelines for Application of Labor Code § 4664(c)(1): Accuracy over Absurdity

By Hon. Colleen Casey, Former Commissioner, California Workers’ Compensation Appeals Board Who doesn’t agree with the fact that “[w]e should not interpret or apply statutory language in a manner that will lead to absurd results?” (See the recent Noteworthy Panel Decision (NPD) of Fraire v. Department of Corrections , 2020 Cal. Wrk. Comp. P.D. LEXIS 60 , 85 Cal Comp Cases 697 (Appeals Board noteworthy...

June 29, 2024

California: COVID-19 and the Fraudulent Concealment Exception

When do the exclusivity provisions of Labor Code section 3600 permit an action for law at damages? By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board Generally, an employee injured in the course and scope of their employment is limited to remedies under California’s Workers’ Compensation Act (act) (Lab. Code, § 3600(a...

June 29, 2024

California Workers’ Comp Med-Legal Costs Up Sharply Under New Fee Schedule

Oakland, CA -- Payments for medical-legal evaluations and reports used to resolve medical disputes in California work injury claims have increased more than expected since a new Med-Legal Fee Schedule (MLFS) took effect in April 2021 according to a new CWCI study, with the average payment for a comprehensive exam up 52%, primarily due to new per-page fees for record review that are paid on top of flat fees for med-legal...

June 20, 2024

California Compensation Cases June 2024

CALIFORNIA COMPENSATION CASES Vol. 89, No. 6 June 2024 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 Lexis+ 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 decisions...

June 19, 2024

California: Questioning the Vocational Expert; Criteria for Vocational Reports

By Hon. Robert G. Rassp and Hon. Clint Feddersen Questioning the Vocational Expert [a] Depositions Counsel will often need to take the deposition of the vocation expert. Live testimony of a vocational expert can occur only on a showing of good cause [ see [b], below ]. Vocational experts are now like medical physicians—their reports are admissible if in a proper form required by statute [ see Lab. Code, §...

June 17, 2024

CWCI Examines California’s Proposed Presumption for Agricultural Heat Injuries

Oakland, CA – A bill that would give a presumption of compensability to farmworker heat-related injury claims if the employer is found to be out of compliance with Cal/OSHA’s outdoor heat illness prevention standard would likely create more challenges than it would solve, entail significant administrative friction costs, and is unlikely to have an appreciable impact on agricultural worker safety according...

June 13, 2024

California: When Is an Expedited Review of a Treatment Request Required?

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board Utilization Review (UR) to determine the appropriateness and necessity of requested medical treatment in a timely manner based on accepted medical standards and guidelines has been a mandatory component of California’s workers’ compensation system for over two decades. In that...

May 29, 2024

California: Appeals Board Panel Clarifies Scope and Intent of Labor Code § 4663(d) Disclosure Requirement

Appeals Board panel revisits Hardesty By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board One of the first lessons learned by practitioners new to the field of workers’ compensation law is that proceedings before the Workers’ Compensation Appeals Board (WCAB) are governed by specific provisions of the Labor Code and the Rules...

May 29, 2024

California Compensation Cases May 2024

CALIFORNIA COMPENSATION CASES Vol. 89, No. 5 May 2024 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 Appellate Court Compensation Case Lexis+ Online Subscribers: You can link to your account on Lexis+ to read the complete headnotes and court decisions, en banc decisions...

May 17, 2024

California: A Look at the Distinct Roles of Evaluating Physicians

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board The medically related intricacies of a California workers’ compensation case are varied and often confusing. Acronyms abound. They include agreed medical evaluator (AME) and qualified medical evaluator (QME), medical provider network (MPN), primary treating physician (PTP) as well...

May 08, 2024

California: Noteworthy Independent Medical Review (IMR) Decisions (May 2024)

LexisNexis has selected some recently issued noteworthy IMR decisions that illustrate the criteria that must be met to obtain authorization for a variety of different medical treatment modalities. LexisNexis Commentary for each selected IMR is provided below. Many of these IMR decisions were reprinted in California Compensation Cases , which can be accessed on Lexis+. The list discusses specific IMR opinions which explain...

May 03, 2024

California: A Guide to Complex Issues: Presumption of Permanent Total Disability, Progressive, Insidious Disease and More

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board Appeals Board panel decisions that rescind a WCJ’s decision and return the case to the trial level for further proceedings and decision generally are not featured in this e-newsletter. The rationale is logical—the dispute may resolve on remand and/or the new decision following...

April 23, 2024

California: Procedure for Obtaining a QME Panel in a Different Specialty in a Disputed Case

Board Panel Opinion Provides a Succinct Explanation By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board The process for determining medical issues in a workers’ compensation claim sometimes seems unduly complex and confusing. Labor Code sections 4060 - 4068 establish how medical issues are determined, and the procedures vary depending...

April 18, 2024

California Compensation Cases April 2024

CALIFORNIA COMPENSATION CASES Vol. 89, No. 4 April 2024 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 Appellate Court Case Not Originating with Appeals Board LexisNexis Online Subscribers: You can link to your account on Lexis+ to read the complete headnotes and court...

April 18, 2024

California: Shipley Doctrine Lives, Continues to Safeguard Due Process Rights of Litigants Before the WCAB

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board Several months ago, an article in LexisNexis Workers’ Compensation Newsletter discussed Zurich American Ins. Co. v. Workers’ Comp. Appeals Bd . (2023) 97 Cal. App. 5th 1213 , 89 Cal. Comp. Cases 1 ( Zurich ), in which the 2nd District Court of Appeal held that the 60-day time...

April 10, 2024

California: ERISA and Federal Preemption Claims vis-à-vis Workers’ Compensation State Requirements

By William Tappin, Esq., Law Offices of Tappin & Associates, Sierra Madre, CA There has been a lot of confusion with respect to whether ERISA preempts state laws regarding numerous programs, including mandatory workers’ compensation coverage by employers. By way of background, it should be noted that some brokers were selling programs as a replacement for workers’ compensation coverage. These were...

April 09, 2024

Larson’s Workers’ Compensation Law Case Spotlights (Spring 2024)

By Thomas A. Robinson, co-author, Larson’s Workers’ Compensation Law Editorial Note: All section references below are to Larson’s Workers’ Compensation Law, unless otherwise indicated. Employee Fraud. While the vast majority of workers’ compensation claimants follow the rules, speak truthfully, do not exaggerate symptoms, or otherwise unethically attempt to maneuver within “the...

April 03, 2024

California Compensation Cases March 2024

CALIFORNIA COMPENSATION CASES Vol. 89, No. 3 March 2024 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 © Copyright 2024 LexisNexis. All rights reserved. CONTENTS OF THIS ISSUE LexisNexis Online Subscribers: You can link to your account on Lexis+ to read the complete headnotes and court...

April 01, 2024

California: A Successful Flight with Kite Ain’t What it Used to Be

By Hon. Colleen Casey, Former Commissioner, California Workers’ Compensation Appeals Board It has been over a decade since the 2nd DCA (District Court of Appeal) denied writ in the case of Athens Administrators v. W.C.A.B. (Kite) (2013) 78 Cal. Comp. Cases 213 (writ den.). Yet, during that entire ten-year span, not one District Court of Appeal has weighed in on the Kite issue. In fact, Kite was the only “Addition...

March 21, 2024

California: Incompetency and Proceedings Before the WCAB

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board Among the varied duties of the Workers’ Compensation Appeals Board (WCAB) is the determination of the competency of an injured employee or dependent. (Lab. Code, § 5408). Upon a finding of incompetency, the WCAB may appoint a guardian-ad-litem or conservator, and until such appointment...