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 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


Penalty payment under section 5814 awarded for unreasonable delay or denial of advance of disability pension payment

This is a published case

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

The applicant was a deputy sheriff who had a job related injury and applied for industrial disability retirement. The applicant also requested an advance on her disability pension payment while her application was being processed.

She applied for the benefit on March 6 and the county claimed they did not receive notice for benefits under labor code section 4850.4 until June 11. The applicant claimed there was an unreasonable delay and requested penalties under labor code section 5814 from the Workers’ Compensation Board (WCAB).

The case went to trial. The County contended they objected to the request for benefits and that the WCAB had no jurisdiction for making payments on the disability pension amounts.

The Workers’ Compensation Judge (WCJ) found that section 5814 did apply to an unreasonable delay of advancement of disability pension amounts. The county petitioned for removal.

The WCAB reversed the WCJ because it believed the advancement of disability retirement payments were not equivalent to workers compensation benefits. The applicant filed a writ.

The court of appeal reviewed labor code sections 4850 and specifically labor code section 4850.4. They reviewed numerous cases and determined that a section 5814 may be appropriate and remanded the case.


The doctrine of Laches was not applied in a case where the employer was given notice of injury

This is a decision of the Court of Appeal certified for publication

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

The applicant was a restaurant manager. One day at work rain was coming into the restaurant where the applicant worked. The applicant went outside with a ladder to inspect the area. A few minutes later the applicant was found unconscious next to the ladder outside.

The applicant suffered a brain hemorrhage and was paralyzed from the shoulders down. After the accident the applicant continued to receive 24 hour medical attention.

The applicant’s wife informed the employer the next day of the injury. The employer denied getting this phone call. At a hearing the Workers’ Compensation Judge (WCJ) found the testimony of the wife more credible than the employer and that notice was given the next day.

The employer never provided a claim form or a notice of potential eligibility for workers’ compensation benefits to the applicant. The applicant did not file a claim for 7 years.

The defendant raised the doctrine of laches as a defense to paying benefits. The WCJ found that the employee was never given notice of the right to benefits so the limitations period for filing a claim was tolled. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

Here there was an absence of delay so laches did not apply.


Court of Appeal case on Independent Medical Review to resolve challenges to Utilization Review

This is a Court of Appeal published case

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

The applicant had an admitted injury to her right foot in 1997. The applicant had 3 surgeries on her right foot and developed pain in her left foot. She had to use a wheelchair which caused low back and bilateral-shoulder pain. She became depressed and after a trial a Workers’ Compensation Judge (WCJ) determined she was permanently totally disabled.

The applicant’s physician requested the applicant receive home health care eight hours a day, five days a week. The defendant sent the request to Utilization Review (UR). The request was denied after review by a physician. The applicant eventually requested Independent Medical Review (IMR). IMR determined that the home health care and four medications requested were not necessary.

The applicant appealed the IMR determination as a denial of due process. The appellate court determined that the Workers’ Compensation Appeals Board (WCAB) did not violate the applicant’s state constitutional rights or her federal due process rights.

The case was remanded by the appellate court to the WCAB to determine if the IMR decision was denied without authority under the Medical Treatment Utilization Schedule (MTUS).


Defendant denied right to cross-examine applicant is denied “due process of law”

This is a published appellate court case

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

The applicant had an admitted injury to the right ankle, right hand and back. These injuries were admitted. The applicant also alleged a psychiatric injury that was denied. There were multiple hearings before the Workers’ Compensation Judge (WCJ).

At the first hearing on whether the applicant was temporarily disabled the applicant admitted to working from time to time. The defendant’s cross-examination was terminated over the defendant’s objection. The defendant filed for reconsideration and the Workers’ Compensation Appeals Board (WCAB) denied reconsideration.

There were three more hearings and the applicant was eventually found permanently and totally disabled. The applicant refused to testify at all three of the hearings. The WCJ did not allow the defendant to cross- examine the applicant at each hearing. The defendant filed for reconsideration after each hearing indicating that it was “denied due process”. Each time the WCAB agreed with the WCJ.

The appellate court indicated that cross-examination is an element of a fair trial. The lack of cross-examination was prejudicial. Therefore, the WCAB decision was annulled.


A published decision of the appellate court on whether 4850 time covers a return to modified duty

This is a published court of Appeal case

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

The applicant was a deputy sheriff. The applicant had a work related injury. The applicant worked the night shift and was given an extra 5% for working the night shift. When the applicant returned to work the applicant was returned to modified duty by his physician. He was not allowed to work the night shift on modified duty. He was still given full salary but not the extra 5%.

The applicant filed for a hearing contending under Labor Code section 4850 he was entitled to the shift differential. A Workers’ Compensation Judge (WCJ) agreed with the applicant and awarded the applicant the extra 5%. On petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

The applicant contended before the appellate court that because he was on modified duty he was on a leave of absence from full duty and thus entitled to the extra 5%.

The appellate court determined that because the applicant was back at work he was not on a leave of absence and therefore, not entitled to 4850 time. Thus, there was no 4850 time while on modified duty.


A published decision of the Court of Appeal addresses Almaraz/Guzman-II issue of rating with no objective findings

This is a published court of Appeal case

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

The applicant was a police officer. He injured his left foot and heel. This was an admitted injury. He was diagnosed with plantar fasciitis.

An Agreed Medical Examiner (AME) wrote a report offering no impairment under the AMA Guides. In a supplemental report the doctor gave a 7 percent impairment using Almaraz-Guzman-II, because other than tenderness, no objective findings were identifiable.

At trial the Workers’ Compensation Judge (WCJ) found no impairment because the condition was not “ complex or extraordinary”. On petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) reversed indicating that the doctor by analogy provided an accurate assessment which met the requirements of Almaraz/Guzman-II.

The appellate court reviewed Almaraz/Guzman-II and indicated that even though the plantar fasciitis was only manifested by subjective experiences of pain a 7 percent permanent disability was warranted. This was equivalent to an analogy of a limp with arthritis.


A non published Court of Appeal case has indicated a professional athlete is not entitled to benefits in California

The applicant was a professional basketball player in the Women’s National Basketball Association (WNBA). The applicant did not reside in California during her career in professional basketball.

She played one game in California on July 20, 2003.

She did not have a specific injury on that date. She filed a cumulative trauma for her multiple basketball injuries with the Workers’ Compensation Appeals Board (WCAB).

A Workers’ Compensation Judge (WCJ) awarded disability benefits and the defendant filed a petition for reconsideration. The WCAB rescinded the award and returned it to the WCJ for apportionment purposes. The defendant filed a writ with the Court of Appeals.

The Court of Appeal issued this decision even though there was no final decision or order from the WCAB.

The appellate court indicated California does not have sufficient interest to apply its workers’ compensation law or to retain jurisdiction over the case. As a matter of due process, California has no obligation to the applicant.


In a panel decision the WCAB determined that a minor is entitled to the death benefit

The applicant was the minor son of a father who died in a work related motor vehicle accident. His mother was a total dependent. There was a minor daughter of a previous marriage.

A workers’ Compensation Judge (WCJ) found the minor son to be a total dependent and awarded him one third of the death benefit. The minor daughter of the previous marriage appealed contending she was entitled to the entire death benefit for minor children. The issue was that the minor son was excluded because his mother was a totally dependent spouse.

The panel decision was split with a dissenting opinion. The majority analyzed Labor Code sections 4703.5 and 3501. They also looked at legislative history and determined that there was nothing intended to deny the special benefit to a totally dependent child who lives with his totally dependent mother. Therefore, the minor son was entitled to the special death benefit.

The dissent would have excluded the minor son based on the statutes.


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