WCAB To Reconsider Almaraz/Guzman

Friday, May 1, 2009 | 0

By Howard J. Stevens

On Monday April 6, the WCAB, in a very unusual move, granted State Fund's Petition for Reconsideration After Reconsideration and agreed to reconsider its controversial decision in the Almaraz and Guzman cases. Petitions for Reconsideration After Reconsideration are available to a party newly aggrieved by a decision After Reconsideration (namely, the party that did not complain about the trial level decision). In addition, on its own motion, the WCAB granted reconsideration of its decision in Ogilvie, a WCAB en banc decision, which gave guidance to parties wishing to rebut the future earning capacity adjustment of the rating schedule.

Officially, the WCAB stated it wanted to give interested parties the opportunity to file amicus, or "friend of the court" briefs.  Unofficially, they may be reacting to the large-scale reaction to these decisions, including attempted political pressure from various sources.

It is important to bear in mind, however, that as of the date this goes to press, there has been no Stay Order issued on the previous decisions, meaning that WCAB trial judges are still bound by those decisions.  Stay informed with future editions of Legal Briefs to keep updated on this developing story.


New Outpatient Hospital and Surgery Fees

The Division of Workers' Compensation has posted an adjustment to the outpatient hospital departments and ambulatory surgical centers section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1.

The effective date of the changes is March 1, 2009. Title 8, California Code of Regulations section 9789.31 is adjusted to conform to the Centers for Medicare and Medicaid Services' (CMS) 2009 hospital outpatient prospective payment system (HOPPS) correction notice to the final rule of Nov. 18, 2008, published on Jan. 26, 2009, in the Federal Register. CMS' correction notice fixes technical errors that appeared in the CMS final rule published in the Federal Register on Nov. 18, 2008.  This change supersedes the adjustment to 8 CCR section 9789.31 made by the Order of the acting administrative director dated Jan. 26, 2009. The adjustments are online at: http://www.dir.ca.gov/DWC/OMFS9904.htm.


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Howard J. Stevens works in the Orange office of McDermott & Clawson LLP, a Southern California workers' compensation defense firm. This article from the firm's Legal Briefs newsletter is reprinted by permission.
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