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.


Aggravation of industrial injury versus exacerbation of industrial injury defined by WCAB

This is a Writ Denied case

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

The applicant injured his low back while doing training. The applicant was evaluated by an Agreed Medical Examiner (AME). The AME determined that the injury was an exacerbation of a prior non-industrial back injury.

The case went to trial and the Workers’ Compensation Judge (WCJ) found the applicant suffered a temporary exacerbation of a chronic, preexisting low back injury. Defendant petitioned for reconsideration claiming an exacerbation is not an industrial injury.

The Workers’ Compensation Appeals Board (WCAB) indicated that the applicant sustained an “aggravation” of his prior injury rather than an “exacerbation”.

The WCAB explained the difference between an “exacerbation” and an “aggravation”. The acceleration, or “lighting up” or “aggravation” is regarded as an injury for workers’ compensation purposes. (Tanenbaum v. IAC) An aggravation of a pre-existing condition is an industrial injury.

An exacerbation is not an industrial injury. The AME using the term exacerbation in this case, was using an incorrect theory regarding the legal basis for what is an injury. His opinion was not substantial evidence.

The applicant in this case suffered an aggravation which was compensable.


Court of Appeal rules on fraud conviction and still allows employee to collect benefits

This is a Certified case of the court of appeal

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

The applicant injured his hand at work. The injury was admitted. The applicant was evaluated by a physician who indicated the applicant would not allow the doctor to perform grip or pinch strength tests on his hand.

The applicant had a psychiatric component and was on opiates. The applicant indicated that he could not use the hand.

The carrier obtained video surveillance. The surveillance saw him removing his sling after doctor visits and using the injured hand. He lifted a washing machine into the back of his car.

The physician reviewed the video and still awarded a whole person impairment.

The applicant was prosecuted for workers’ compensation fraud and was convicted and paid restitution.

The Workers’ Compensation Judge (WCJ) gave the applicant a 70 per cent award in spite of the fraud. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

The court of appeal reviewed the fraud statutes 1871.4 and 1871.5. They also reviewed the Tensfeldt case. Entitlement to receive benefits after a conviction will require an industrial injury, medical evidence supporting an award not stemming from the fraud, and the claimant’s credibility is not destroyed. That was the case here so the award stood.


Court of appeal rules on the Statute of Limitations joining party 6 years after the injury

This is a Writ Denied case

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

The applicant became permanently and totally disabled while working for a licensed contractor on an apartment complex. The contractors workers’ compensation insurance had lapsed so he was uninsured on the date of the accident. The contractor later filed for bankruptcy.

The Uninsured Employers Benefits Trust Fund (UEBTF) was joined as defendant for the uninsured contractor.

Six years later the Workers’ Compensation Judge (WCJ) joined the property owner. The property owner raised the issue of statute of limitations and laches. The WCJ found the property owner to be the employer because the contractor was unlicensed and uninsured. The WCJ rejected the statute of limitations defense.

The Workers’ Compensation Appeals Board (WCAB) found that the statute of limitations had been tolled because the property owner failed to give the applicant notice of his rights to workers’ compensation.

The court of appeal reviewed the Business and Professional Code and the Labor Code. They reviewed case law and determined the statute of limitations was not tolled. After the applicant filed his claim there was no need for a claim form or notice of potential eligibility for benefits. The property owner had no legal duty to inform the applicant he was the employer for workers’ compensation benefits.


Workers’ Compensation Appeals Board rebuts scheduled rating to make applicant 100 per cent

This is a Writ Denied case

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

The applicant suffered a right arm injury resulting in an amputation. The applicant also suffered left shoulder and psyche injures. The applicant was seen by his treating psychologist and an Agreed Medical Examiner (AME) for the orthopedic injuries.

A formal rating was issued by the DEU of the applicant’s injuries of 92 per cent. Both doctors indicated the applicant was unable to return to his former occupation and could return to modified work with certain restrictions. There was no evidence the employer could accommodate the restrictions.

At trial the Workers’ Compensation Judge (WCJ) determined that the applicant was not amenable to rehabilitation or modified work with the defendant. The WCJ discounted the vocational expert on the grounds that the applicant’s work life of 1.1 years had already been exceeded. The WCJ found the applicant permanently and totally disabled (100 per cent).

The Workers’ Compensation Board (WCAB) on reconsideration agreed with the WCJ. The applicant’s permanent disability was greater than the scheduled rating based upon substantial evidence that the applicant was not capable of vocational rehabilitation. The scheduled rating is presumptively correct but may be rebutted. Here the WCJ relied on the entire record to determine the applicant was precluded from rehabilitation or performing modified work. Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding. HB


Workers’ Compensation Appeals Board must state the evidence relied on and the reasons for its decision

This is a published decision of the court of appeal

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

The applicant suffered a psychiatric injury. The Qualified Medical Examiner (QME) found the injury did not cause any permanent disability. The QME indicated he could not determine temporary disability. However, he indicated she could return to work with a reasonable accommodation. The employer refused to accommodate her work restriction.

The Workers’ Compensation Judge (WCJ) found no permanent disability and that the applicant failed to prove any period of temporary disability.

The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and denied the applicant’s petition for reconsideration. The applicant filed a writ with the court of appeal. The WCAB wrote a letter brief to the court of appeal indicating it made an error in the case and asked that its opinion be annulled and remanded.

The court of appeal recognized that the WCAB admitted that it did not review all available legal theories to the applicant. If the employer denied modified work then the applicant might be temporarily disabled.

Therefore, the original decision did not state the evidence relied on and the reasons for its decision. The WCAB did not review in sufficient detail refusal to provide modified worker so the case is remanded.


Court of Appeal reviews required vehicle exception to the going and coming rule

This is a published decision of the court of appeal

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

The applicant was an in-home caretaker for the department of Social Services. She was paid every two weeks for all work performed. She was not paid for transportation between locations.

On the date of injury she finished her first assignment and was riding her bike to the second assignment when she was involved in a car accident. The employer denied the claim.

The claim was heard on only the issues of employment and AOE-COE. The Workers’ Compensation Judge (WCJ) found the claim compensable because the required vehicle exception applied to the going and coming rule.

The Workers’ Compensation Appeals Board (WCAB) ruled the claim was barred by the going and coming rule.

When a writ was filed the WCAB filed a brief stating that they were incorrect and the required vehicle exception applied. However the employer still disputed this.

The appeals court gives one of the best summaries of this line of cases. They review Hinojosa but indicate this is directed to a commute between home and work. They then review cases where the employee is required to commute between job sites. They indicated that transiting between job sites was part and parcel of her job and therefore, compensable.


Court of Appeal rules there is no apportionment for disability resulting from medical treatment

This is a published decision of the court of appeal

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

The applicant did many years of clerical work for Costco. The applicant took a leave to undergo carpal tunnel surgery. She filed a claim and this was an admitted injury. Following surgery, she developed chronic regional pain syndrome (CRPS).

The Agreed Medical Examiner (AME) found the applicant permanent and totally disabled. He apportioned 90% industrial and 10% nonindustrial.

The Workers’ Compensation Judge (WCJ) awarded the applicant 90% permanent disability. The applicant filed for reconsideration. The Workers’ Compensation Appeals Board after a remand increased disability but still allowed apportionment. A writ was filed.

The court of appeal dealt with timeliness of appeal and allowed the appeal. The court reviewed sections 4663 and 4664. The court indicated that the issue is whether an employer is liable for both the medical treatment and any disability arising directly from an unsuccessful medical treatment, without apportionment. They reviewed the statutes and Granado and Dueville. Here there was no dispute that the applicant had disabling carpal tunnel. The surgery went badly resulting in CRPS.

They indicated that the employer is thus responsible for the treatment with no apportionment. HB


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