A psychiatric claim on a petition to reopen was allowed even though it was never raised on original claim

This is a writ denied decision

This is a very significant case for workers’ compensation principles.

The applicant suffered a compensable injury to his left shoulder, hands and neck due to a cumulative trauma. The case went to trial and the Workers’ Compensation Judge (WCJ) issued a Findings and Award for 69% permanent disability.

Thereafter, the applicant filed a timely Petition to Reopen for New and Further disability. The applicant alleged a psychiatric disability for the first time as a compensable consequence of the original disability. There was substantial evidence of the psychiatric disability before the original trial, but no psychiatric claim was made.

The WCJ found the applicant was precluded from raising the psychiatric claim on the petition to reopen. The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) found the applicant was not precluded from raising the psychiatric claim. They reasoned that even though applicant was aware of psychiatric symptoms there was no substantial evidence before the original trial establishing industrial causation.

Here, even though there was knowledge, there was no diagnosis using DSM III prior to the original trial.

The WCAB granted reconsideration. The Court of Appeal denied the writ that was filed. The court of appeal indicated that panel decisions are citable authority.


100 percent finding of permanent disability under Labor Code Section 4662 (b) overturned

This is a published court decision

This is a very significant case for workers’ compensation principles.

The applicant suffered a compensable injury to his heart and psyche while employed as a correctional officer. The applicant received a 97 percent permanent disability rating for his heart. The rating for the psychiatric component was 71 percent. Combining the two ratings resulted in a 99 percent disability.

The case went to trial. The Workers’ Compensation Judge (WCJ) found the applicant 100 percent (permanent and total) disabled in accordance with Labor Code section 4662 (b). The WCJ did not mention or discuss the combined rating of 99 percent using the 2005 schedule of rating permanent disability.

The defendant filed a Petition for Reconsideration alleging the applicant was 99 percent disabled. The Workers’ Compensation Appeals Board (WCAB) reviewed Labor Code section 4660 and 4662 (b) and agreed with the WCJ that the applicant was 100 percent.

On review the Court of Appeal reviewed section 4660 and 4662. They also reviewed numerous cases. They reviewed Ogilvie, LeBoeuf, Jaramillo, among others. They concluded there was no basis for concluding section 4662 (b) provided a path to permanent disability. They indicated section 4660 is mandatory. The 2005 schedule is prima facie evidence of disability. In this case 99 percent. The case was remanded to the WCAB for further action.


California Supreme Court indicates utilization review is an exclusive remedy of California Workers’ Compensation

This is a published Supreme court decision

This is a very significant case for workers’ compensation principles.

The applicant suffered a compensable back injury. The applicant also claimed anxiety and depression. A mental health physician prescribed a psychotropic drug, Klonopin.

A utilization review company was retained to determine whether Klonopin was necessary. Dr. Sharma on review determined the drug was medically unnecessary and decertified the prescription. Dr. Sharma did not warn of the risks of abruptly ending the drug and when the applicant immediately stopped taking the drug suffered a series of four seizures.

The applicant filed a civil suit against the utilization review company and Dr. Sharma. The defendants filed a demurrer alleging the workers’ compensation board had an exclusive remedy, so no civil suit was indicated. The trial court sustained the demurrer and the court of appeal sustained the demurrer.

The Supreme Court indicated that the injuries were derivative of a compensable workplace injury and within the scope of workers’ compensation. The court reviewed numerous statutes and case law. They also reviewed the exceptions to the exclusive remedy doctrine and found those exceptions were not applicable here.

They indicated the utilization process was within the exclusive remedy of the Workers’ Compensation Appeals Board.


Football player is denied workers’ compensation in California due to lack of jurisdiction by the state

This is a published appellate court decision

This is a very significant case for workers’ compensation principles.

The applicant was a professional football player. He played 6 years in the National Football League. He played in 110 games in his career, but only two of those games were in California.

The applicant was living in Los Angeles and his agent was located in Newport Beach when they allege they signed his contract with the Indianapolis Colts. They allege this gave the state of California jurisdiction over his claim.

The Workers’ Compensation Judge (WCJ) found at trial that the applicant sustained a 67 percent permanent disability and California had jurisdiction. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ finding that neither the applicant nor his agent were in California when the contract was accepted and signed. Therefore, California did not have jurisdiction and they reversed the award.

The appellate court reviewed numerous cases and statues. They agreed with the WCAB that there was no binding agreement in California so California had no jurisdiction. The appellate court also ruled playing two games in California was not sufficient to make an award.


Assisting a police officer in active law enforcement makes that person an employee for workers’ compensation purposes

This is a published appellate court decision

This is a very significant case for workers’ compensation principles.

This case did not come out of workers’ compensation but resulted from a summary judgment in a civil case for negligence and misrepresentation.

A deputy sheriff phoned husband and wife citizens and asked them for assistance in a 911 call that was received by the sheriff. The deputy explained he was miles away and asked them to go check on a 911 call the sheriff had received from their neighbor.

The couple (who were not employed by the sheriff) went to check on their neighbor. They stumbled in on a double murder in progress and were both attacked by a knife and suffered severe wounds.

They filed a civil suit against the county and the county filed a summary judgment claiming the couple were employees and their only recourse was workers’ compensation. The court agreed.

The court looked at Labor Code section 3366 that indicates that any person engaged in assisting a police officer is deemed an employee of the public entity.

The court defines active law enforcement under the statute and determined the couple were in active law enforcement. They indicated they were exposing themselves to risks inherent in preventing a crime by responding to a 911 call. Therefore, their only remedy was workers’ compensation.


Supreme Court unanimously ruled on independent contractor issues in a non workers’ compensation case

This is a published supreme court decision

This is a very significant case for workers’ compensation principles.

This case did not come out of workers’ compensation but dealt with wage and hours. The case of S.G. Borello & Sons Inc. v Department of Industrial Relations still applies in Workers’ Compensation.

This case dealt with delivery drivers. They had been employees and then were reclassified as independent contractors. That is how the dispute arose.

The Supreme Court in a unanimous decision gave a three part test to determine independent contractor status where a worker is considered an independent contractor:

“(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in independently established trade, occupation or business of the same nature as the work performed for the hiring entity.”

The burden of proof is on the employer to prove independent contractor status. Failure to prove any aspect means the worker is an employee.


Court of Appeal indicates that 5500.5 may not apply with a prior injurious exposure

This is a published appellate decision

This is a very significant case for workers’ compensation principles.

The applicant was a firefighter for the City of South San Francisco from 1973 to 2001. Thereafter, he worked for the City of Pacifica from 2001 on. He was exposed to known carcinogens during each employment. The cancer manifested itself in 2005 causing disability in 2007.

The applicant filed a cumulative trauma against Pacifica the last employer. Pacifica denied liability and joined the City of South San Francisco for the prior employment. The City of South San Francisco settled with the applicant for the entire period of both employments and sought contribution from Pacifica.

The case went to an arbitrator for contribution. The arbitrator ruled that section 3212.1 and 5500.5 governed. The arbitrator indicated you also look at section 5412 for date of injury.

In this case the arbitrator found there was a latency period that made harmful exposure in 1996 or 1997. This was during the first employers coverage. Based on this the arbitrator found liability on the first employer and not during the last year of employment under 5500.5.

The city of South San Francisco petitioned for reconsideration. The Workers’ Compensation Appeals Board (WCAB) agreed with the arbitrator. It was then appealed to the appellate level.

The appellate court reviewed 3212.1 and 5500.5 and they indicated the arbitrator ruling was correct based on the latency period.


Court of Appeal indicates that temporary disability may not be paid more than five years after date of injury

This is a published appellate decision

This is a very significant case for workers’ compensation principles.

The applicant suffered an injury to his right shoulder on July 31, 2010. He received a 12 percent permanent disability in 2011. He filed a petition to reopen in 2015.

On September 15, 2015 he applied for section 4850 benefits and temporary disability. This was more than 5 years from the date of injury. The employer contended he was not entitled to benefits under labor code section 4656, subdivision (c)(2).

The matter went to trial and a workers’ compensation judge (WCJ) ruled the applicant was entitled to befits beyond five years. The employer filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) in a split decision ruled the applicant was entitled to benefits beyond five years.

The appellate court reviewed section 4656. They also reviewed Radesky v. City of Los Angeles. They then reviewed Sarabi v. WCAB. Finally, they reviewed Nickelsberg v WCAB. They also reviewed the liberal construction doctrine of Labor Code section 3202.

The court of appeal indicated that section 4656, subdivision (c) (2) clearly and unambiguously provides that temporary disability shall not exceed 104 weeks form the date of injury. The relevant statutory language provides all temporary disability payments must be made within 5 years from the date of injury.


Court of Appeal review sudden and extraordinary employment condition for psychiatric case

This is a published appellate decision

This is a very significant case for workers’ compensation principles.

The applicant had a work related back injury that resulted in two surgeries. He also claimed a psychiatric injury. The applicant worked at the employer less than 6 months.

The injury occurred when a compactor he was using struck a rock. It caused the applicant who was on a slope to fall backwards. The compactor fell on top of him.

The applicant contended the psychiatric injury was a sudden and extraordinary event because he had not worked there for 6 months. At trial, The Workers’ Compensation Judge (WCJ) found the psychiatric claim compensable because this type of injury could not have been anticipated and was not foreseeable.

On petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) affirmed the WCJ decision based on credibility.

The appellate court reviewed section 3208.3 (d). They then reviewed cases on sudden and extraordinary events. They reviewed Matea v.WCAB, SCIF v WCAB (Garcia) and Travelers v WCAB (Dreher).

Here they indicated the applicant did not meet the burden of proof that a sudden and extraordinary employment condition caused his injury. The applicant did not introduce any evidence of this. The applicant failed to introduce evidence that this was an uncommon, unusual or unexpected event. HB


The Workers’ Compensation Appeals Board (WCAB) does not have to reveal the name of the Independent Medical Reviewer

This is an appellate decision

This is a very significant case for workers’ compensation principles.

The applicant had a work related injury that resulted in several surgical procedures. The applicant saw a pain-management specialist who prescribed a pharmaceutical regimen. Five of the prescriptions were approved and four were denied.

The applicant appealed the decision through the Independent Medical Review (IMR) process. IMR organization approved one of the four prescriptions and rejected the other three.

The applicant appealed and a Workers” Compensation Judge (WCJ) reversed the IMR decision and sent it back to the organization for review by a different reviewer.

While it was up for second review the applicant asked the Board to reveal the identity of the first and second reviewer. Before the hearing, the second reviewer issued an opinion.

A hearing was held to reveal the names of the reviewers. The WCJ denied the request to reveal the names based on section 4610.6, subdivision (f). On petition for reconsideration the WCAB agreed with the WCJ and denied the request to reveal the names of the reviewers.

The appellate court reviewed the confidentiality provision of section 4610.6, subdivision (f). The confidentiality section ensures that reviewers are independent and unbiased. This section prevents the Board from revealing the names and does not violate due process.


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