Appellate Court Will Not Award Reimbursement For a Life Care Plan

This is a very significant case for workers’ compensation purposes. Even though this case is not published it cites published cases for principles that can be effectively utilized.

The applicant had an admitted injury in 2002. The applicant had a catastrophic injury from a fall. The applicant had limited use of the extremities as well as psychological damage .The applicant needed 24 hour care to assist him with the activities of daily living.

The applicant’s attorney requested lien claimant to prepare a Life Care Plan. The lien claimant submitted a lien for $24,424.44. The defendant refused to pay.

The case was stipulated by defendant at 100 per cent because the applicant did not want a Compromise and Release. The lien for the Life Care Plan was not settled and eventually tried before a Workers’ Compensation Judge (WCJ). The WCJ did not allow the lien since the report was not required or necessary in the case.

The lien claimant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) denied the petition.

The lien claimant filed a writ and the appellate court looked at allowing discretionary costs under Labor Code section 5811, subdivision a. The appellate court indicated that the WCAB did not abuse their discretion in not allowing this cost. There was no contested issue and nothing in the Life Care Plan was necessary to achieve a resolution in the matter.

In addition the court analyzed medical-legal costs under Labor Code section 4621 and determined this was not proper medical-legal for proving or disproving a contested claim.


Appellate Court Will Not Rescind an Old Award That Was Incorrect Due to Waiver

This is a very significant case for workers’ compensation purposes. Even though this case is not published it cites published cases for principles that can be effectively utilized.

The applicant had an admitted injury in 1994. Earnings were an issue presented to the original Workers’ Compensation Judge (WCJ). The WCJ found the average weekly earnings to be $507 a week resulting in a temporary disability rate of $338.17. The applicant apparently petitioned the Workers’ Compensation Appeals Board (WCAB) and lost on the issue of earnings.

The applicant again raised the issue of earnings in 2008. The WCJ in a hearing raised the temporary disability weekly rate to $410.00. The employer appealed and the WCAB indicated that the applicant had not timely filed a petition to reopen and therefore reversed the WCJ.

The WCAB has the authority to “rescind, alter or amend” its awards on the showing of “good cause”. Labor Code 5803. However, this has to be accomplished within five years of the date of injury. Labor Code 5804.

The court indicated under the “Doctrine of waiver” a party loses the right to appeal an issue caused by their own affirmative conduct or failings to correct an error. Under the doctrine of “invited error” a party is estopped from asserting prejudicial error where their own conduct caused the error.

Therefore, in this instance even though temporary disability was paid at the incorrect rate the applicant was not allowed to correct the error and the original incorrect award was upheld.


Employer Liable for Civil Damages

This is a very significant case for workers’ compensation purposes. Even though this was initially a workers’ compensation claim it resulted in huge civil verdict for the applicant. I would anticipate many more of these claims since this applicant had a huge recovery under FEHA.

The applicant had an admitted injury. The employer paid benefits. The applicant had hip replacement surgery. The facts become very convoluted as to the applicant returning to work.

The applicant wanted to return to work and had a release to return to work. The employer would not take the applicant back.The employer wanted the applicant permanent and stationary.

The applicant filed a complaint with The California Department of Fair Housing and filed in Superior Court alleging a violation of California’s Fair Employment Housing Act (FEHA).

The applicant prevailed in Superior court and was awarded $380,306. In addition the court awarded $21,836 in costs and $569,608 in attorney fees.

The appellate court indicated that under section 12940, subdivision (n) the employer must make a reasonable accommodation. The employee may file a civil action based on the employer’s failure to engage in the interactive process of bringing the employee bad to work.

Lesson to be learned is be careful what you advise an employer about taking an employee back to work.


Appellate Courts Disagree on Rating Schedule to Determine Permanent Disability

This is another case in a sequence of cases trying to determine which rating schedule to use. This question will ultimately have to be determined by the California Supreme Court.

In this case the applicant had an admitted injury. The applicant did not become permanent and stationary before January 1, 2005. However, the applicant was seen by a physician who wrote a report December 20, 2004. Coupled with a deposition of the physician in 2007 it was determined that the applicant had permanent disability prior to January 1, 2005.

The Workers’ Compensation Judge (WCJ) determined at trial the 1997 Permanent Disability Rating Schedule (PDRS) should be used and not the 2005 PDRS. The employer filed a Petition for Reconsideration and the Workers’ Compensation Appeals Board (WCAB) sided with the WCJ. The employer filed a Writ.

This appellate court noted the divergence in appellate opinions. Specifically, they looked at Labor Code section 4600, subdivision (d). They looked at Vera v. WCAB (2007) 154 Cal. App. 4th 996 that requires the applicant to be permanent and stationary prior to January 2005 to use the old schedule.

This court disagreed with that decision and followed the decision in Genlyte v. WCAB (Zavala) (2008) and Zenith Ins. V WCAB (2008) 159 Cal. App. 4th 705, which indicated the applicant did not need to be permanent and stationary , you only need the indication of permanent disability.


When Employer Disputes Need for Treatment You Must Use Utilization Review

This is a significant decision involving interpretation of Labor Code sections 4610 and 4062.

The applicant incurred an admitted industrial injury in 2003. The applicant received medical treatment and the physician requested a magnetic resonance image (MRI). The employer submitted this request for utilization review. The employer did not communicate its decision within the 14 days required by Labor Code section 4610.

The applicant attorney requested an expedited hearing. The Workers’ Compensation Judge (WCJ) found the employer failed to comply and ordered the MRI. The employer filed a petition for reconsideration.

The Workers’ Compensation Appeals Board ( WCAB) heard the case en banc and issued a decision saying that even though the employer missed the deadline for review under 4610, they could still use Labor Code section 4062. Under 4062 the employer could dispute the treating physician.

The employer filed a writ with the Court of Appeal who issued an opinion agreeing with the WCAB. The Court of Appeal indicated that even though the employer was precluded from the utilization review process the employer could still utilize section 4062.

The Supreme Court analyzed Senate Bills 228 and 899and overturned the lower court decision. The Supreme Court determined base on the language of the statutes that you must use the utilization review process of section 4610 and cannot rely on 4062. This is extremely important since you have to react quickly within the time constraints of 4610.


Temporary Disability After Five Years From Injury Is Not Allowed

This is a significant decision involving interpretation of Labor Code section 4656.

The applicant incurred an admitted industrial injury in 1997. The applicant received temporary total disability (ttd) and was found permanent and stationary in 2002. The employer paid ttd until 2002 and then paid a vocational rehabilitation benefit until 2003.

In 2005 the physician indicated the applicant was ttd and performed lumbar surgery the next day. The employer denied ttd benefits on the grounds that five years had elapsed since the date of injury.

The issue went to trial and the Workers’ Compensation Judge (WCJ) awarded ttd beginning in 2005. The WCJ also awarded a 5814 penalty of 25%. The employer petitioned for reconsideration. The Workers’ Compensation Appeals Board (WCAB) affirmed the WCJ decision except on the issue of penalty.

The appellate court looked at the WCAB’s right of continuing jurisdiction under Labor Code sections 5410, 5803 and 5804. The court looked at Huston v. WCAB (1979) 95 Cal. App. 3d 856 and Nickelsberg v WCAB (1993) 12 Cal. App.4th 209 and differentiated both cases.

The court indicated ttd could be paid if there is a continuing award before the five years has run. However, if the five years has already expired and there is no continuing jurisdiction there is no additional ttd under Labor Code section 4656. In this case the ttd was reversed as well as the penalty, since the applicant had been permanent and stationary at the conclusion of the five years.


104 Weeks of Temporary Disability Includes IDL and Enhanced IDL

This is a significant decision involving interpretation of Labor Code section 4656 (c) (1), which limits temporary disability for a single injury to 104 weeks within a two year period.

The applicant was injured at work by an inmate. The applicant worked for the California Department of Corrections and Rehabilitation. Instead of collecting temporary disability, the applicant elected to collect Industrial Disability Leave (IDL). This applicant was entitled to “enhanced” IDL which is full net take-home salary.

The applicant collected enhanced IDL for one year and then temporary disability (TD) for one year. The carrier cut off benefits to the applicant claiming the applicant had reached the 104 week level for TD under Labor Code section 4656, subdivision c (1).

The applicant took this issue to trial. The Workers’ Compensation Judge (WCJ) found the enhanced IDL was in addition to TD. The carrier filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) overruled the WCJ.

The applicant filed this writ.The appellate court looked at the case of Brooks v. WCAB 161Cal.App 4th 1522 (2008) which found regular IDL fell within the 104 week rule. That court concluded that employees were entitled to two years of TD which included IDL.

Here the applicant argued that enhanced IDL should be like section 4850 time and not be counted as TD. This court indicated salary continuation under section 4850 is different than enhanced IDL. Therefore enhanced IDL is within the two year rule.


104 Weeks of Temporary Disability Runs Concurrently for Multiple Injuries

This is a significant decision involving interpretation of Labor Code section 4656 (c) (1), which limits temporary disability for a single injury to 104 weeks within a two year period.

The applicant was injured at work in two separate incidents. Both injuries contributed to the applicant’s temporary disability.

The case went to trial on whether the applicant was entitled to one or two periods of temporary disability.┬áThe Workers’ Compensation Judge (WCJ) determined that the applicant was entitled to a separate and distinct 104 weeks of temporary disability after the first 104 weeks was paid.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) disagreed with the WCJ and indicated there is only one period and the 104 weeks runs concurrently.

The appellate court on review looked at Labor Code section 4656 (c) (1). The court looked at legislative intent. They looked at SB 899. They indicated this was urgency legislation. The legislation was to provide relief from the current workers’ compensation system. It was to relieve a perceived crisis in skyrocketing costs.

Thus, they interpreted this to mean that the legislature intended Labor Code section 4656 to be a significant narrowing of costs. If they followed the WCJ opinion this could lead to many periods of temporary disability based on the number of injuries the applicant filed. They did not believe this is what the legislature intended. The legislature intended there only be one period of 104 weeks no matter how many injuries were reported.


Can the old schedule be used if not P&S?

This is a significant decision involving interpretation of Labor Code section 4660 ,subdivision(d).

The applicant had an industrial injury and received temporary disability from May 2003 through June 2005. In October 2004, the applicant was seen by a physician that indicated that the applicant was permanent and stationary absent surgery. The applicant had surgery and was not declared permanent and stationary until May 21, 2005.

The case went to trial over which permanent disability schedule was appropriate. Applicant contended the old schedule was appropriate and the defendant contended the new schedule using the American Medical Association Guides to the Evaluation of Permanent Disability was appropriate.

The Workers’ Compensation Judge (WCJ) determined the old schedule was appropriate based on the report of October 2004.The defendant filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) concurred that the October 2004 report indicated the existence of permanent disability. Defendant file a writ which led to this appellate decision.

The court reviewed conflicting appellate decisions.The court reviewed Genlyte Group LLC v. WCAB (2008) (Genlyte) which reached the same result as this court. They also reviewed Vera v WCAB (2007) (Vera) which reached a contrary result. This court indicated that a medical-legal report issued before January 1, 2005 need not state the applicant is permanent and stationary in order to trigger the old rating schedule.

Thus, with the split in appellate decisions this will likely be addressed by the California Supreme Court for final resolution.


Apportionment Under Brodie Decision Is Correct

This is a significant decision involving interpretation of subtracting a prior award on a 100 per cent case.

The applicant worked for the employer for 16 years and suffered numerous workers’ compensation injuries. In 1994 it was stipulated the applicant had a 60 per cent permanent disability for these injuries.

The applicant continued to work for the employer and filed two new claims. The applicant did not reopen the prior cases. The parties stipulated at trial the applicant was 100 per cent disabled. The workers’ compensation judge (WCJ) found that there was only one cumulative trauma instead of two injuries. The judge only allowed the monetary amount of the prior award for 60 percent to be deducted from a 100 percent award, instead of deducting the percentage. The Workers’ Compensation Appeals Board (WCAB) eventually denied the employers petition for reconsideration.

The appellate court at first denied review. The employer then filed a writ with the Supreme Court who transferred the case back to the appellate court with the instruction to vacate the decision.

On review this court relies on Brodie v. WCAB (2007) 40 Cal 4th 1313. Brodie evaluated old case law under the Fuentes decision and decided the changes in the apportionment law with SB899 did not change using Formula A as was used in the Fuentes decision.

Therefore, in this case even though the applicant was 100 percent disabled, the prior 60 percent needed to be subtracted. Thus, 60 per cent is subtracted from 100 per cent and the applicant only gets 40 per cent. That is the applicant gets the dollar value of 40 percent for that date of injury.

It is of interest to note the WCJ only found one injury although two were filed.


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