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


Court of Appeal rules on statute of limitations and labor code section 5500.5 against defendant

This is a published decision of the court of appeal

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

The applicant was a deputy county sheriff from 1998 to 2010. He took a service retirement. He thereafter worked for a federally recognized Indian tribe from 2010 to 2014.

He filed an application for a continuous trauma in 2014 for his employment which included that from 1998 to 2010. He first learned that his cumulative trauma was industrially related in 2013. The matter went to trial.

The Workers’ Compensation Judge (WCJ) ruled that 2014 was the last year of employment even if it was with a federally recognized Indian tribe under L.C. 5500.5. A petition for reconsideration was filed.

The Workers’ Compensation Appeals Board (WCAB) found that the statute of limitations did not apply since the applicant did not confirm his medical condition was industrially related until 2013. In addition, they found 5500.5 did not apply to the federally recognized tribe, so the prior employment was responsible.

On appeal, the appeals court looked at Labor code sections 5405 and 5412. The date of injury is when the applicant suffered disability and either knew or should have known that his disability was industrially related. In this case, he filed timely.

The appeals court ruled that 5500.5 only applies to the last year of coverage. Since the federal employment was not covered, the 1998 to 2010 employment was liable.


Court of Appeal indicates that you can apportion to heredity and genetics

This is a published decision of the court of appeal

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

The applicant was a police officer. He suffered an admitted cumulative trauma to his neck. He underwent neck surgery. The Qualified Medical Examiner (QME) indicated the applicant had cervical radiculopathy and cervical degenerative disc disease. The QME apportioned disability.

The QME referred to specific publications that indicate causation can be to genomics/genetics/heritable issues in terms on injury. The QME apportioned 49 percent to nonindustrial causation.

The Workers’ Compensation Judge (WCJ) determined that the apportionment was legal to genetic factors. The applicant petitioned for reconsideration. The Workers’ Compensation Appeals Board (WCAB) overruled the WCJ indicating that apportioning to genetics factors opens the door to apportioning to impermissible immutable factors.

The Court of Appeal disagreed in a great review of apportionment law. It indicated Zemke was superseded by Senate Bill 899. It then reviewed multiple cases including Escobedo. It reviewed section 4663. It reviewed what is substantial medical evidence. It indicated that the QME report found cervical radiculopathy and degenerative disc disease. It apportioned 49 percent to heredity, genomics, and other personal history factors. This was legal proper apportionment.


Worker’s Compensation Appeals Board (WCAB) must state evidence relied upon and reasons for its decision to be valid

This is an unpublished decision of the court of appeal

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

The applicant alleged an industrial cumulative trauma and specific injury. He claimed he contracted prostrate cancer. A Qualified Medical Examiner (QME) was chosen by the parties. The QME determined that cancer was not related to his employment.

The applicant hired a doctor at his own expense and forwarded the doctors report to the QME to write a supplemental report. The defendant objected and filed for a hearing claiming the applicant violated the discovery process.

A Workers’ Compensation Judge (WCJ) determined the report of the applicant doctor was not admissible but could be reviewed by the QME. The defendant filed a petition for reconsideration. The WCAB treated the petition as one for removal. The WCAB decided the report could not be reviewed by the QME. The applicant then petitioned for reconsideration or removal.

The WCAB denied both removal and reconsideration but failed to address section 4605 of the Labor Code.

The appellate court reviewed and indicated that the WCAB did not state the evidence in its opinion or the reasons for its decision as required in Labor Code section 5908.5.

The WCAB’s failure to give its reasoning in adequate detail was sufficient to annul its decision.


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