The Court of Appeal Issued a Published Decision in the Ogilvie Case

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant was injured in 2004. The applicant underwent knee replacement surgery in 2006. A physician recommended spinal surgery which applicant declined. The applicant never returned to work.

At trial the applicant rebutted the rating of the schedule on the basis of diminished future earning capacity. The applicant used a vocational rehabilitation expert. The Workers’ Compensation Judge (WCJ) agreed with the applicant and devised an alternative way to calculate applicants disability at a higher rate than the schedule.

The Workers’ Compensation Appeals Board (WCAB) in an en banc decision indicated that the applicant could rebut the schedule and created a new methodology to rebut the schedule.

The appellate court concluded that an employee may challenge the presumptive schedule of permanent disability by showing a factual error in the calculation of a factor in the rating formula or application of the formula, or by showing that the applicant is not amenable to rehabilitation and therefore has a greater disability than is shown in the rating schedule. The applicant can show the rating was incorrectly applied or the rating inadequate in light of the industrial injury. The case was reversed.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602

Newport Beach, ca 92662

Phone: 949 252-1300


The Court of Appeal Issued a Non Published Decision on the Issue Which Rating Schedule to Use

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant filed a cumulative trauma as a hockey player for the San Jose Sharks from 1997 to 2002. The applicant testified to numerous specific injuries and was on the employers injured reserve list almost every year. He was paid salary continuation.

The case was tried by a Workers’ Compensation Judge (WCJ) and the applicant was found 100 per cent disabled. The WCJ found the 1997 permanent disability schedule applied because the case fell within one of the three exceptions to Labor Code section 4660 (d).

The employer petitioned for reconsideration and the Workers’ Compensation Appeals Board reversed and found the 2005 rating schedule for rating permanent disabilities applied.

The appellate court reversed and indicated that the 1997 schedule applied because the applicant received salary continuation, which triggered the need for the employer to give notice under Labor Code section 4061. The employer’s failure to do so triggered the exception under Labor Code section 4660 (d)

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602

Newport Beach, ca 92662

Phone: 949 252-1300


The Court of Appeal Issued a Non Published Decision on the Issue of Good Cause to Reopen Under Labor Code 5803

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant was injured in 2002. In 2006 the parties entered into a Stipulation with Request for Award for 35 percent permanent disability.

In 2007 the applicant filed a timely Petition to Reopen for New and Further Disability. An Agreed Medical Examiner (AME) determined the condition was non industrial and did not know what the original 35 percent was based on. The AME did indicate the applicant was still permanently disabled, as he was at the time of the original stipulation.

The defendant filed a Petition to Reopen to Reduce the award in 2008. The appellate court ruled that Labor Code section 5803 establishes a five-year statute of limitation and the WCAB had no jurisdiction to lower the award.

The court indicated that you can not rescind a stipulation after the five year period.

Te appellate court also indicated that to support an additional award there must be further disability. In this case there was no further disability because the applicant’s condition did not change since the original award.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602

Newport Beach, ca 92662

Phone: 949 252-1300


The Court of Appeal Issued a Non Published Decision on the Issue of Good Cause to Reopen Under Labor Code 5803

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant was injured In August of 2004. The applicant received treatment and eventually saw an Agreed Medical Examiner (AME). The AME gave disability which rated differently depending on whether you used the 1997 Permanent Disability Rating Schedule (PDRS) or the 2005 PDRS.

A trial was held and the Workers’ Compensation Judge (WCJ) awarded benefits under the 2005 PDRS. The only published case at this time was the Vera case. The WCJ relied on this case and the applicant received less disability than if the 1997 PDRS was used.

In October 2008 the applicant Petitioned to Reopen the case on a change in the law. In 2009 the WCJ ruled there was good cause to reopen based on a change in the law because of the cases of Genlyte and Zenith. The employer filed a Petition for Reconsideration and the Workers’ Compensation Appeals Board reversed the WCJ stating there had been no change in the law.

The appellate court annuled the WCAB decision and remanded the case to the WCAB to apply the Genlyte case and determine if there was substantial evidence based on the entire record.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 18881 Von Karman # 250 Irvine 92612

Phone: 949 252-1300

 


The Court of Appeal Issued a Published Decision on the Issue of Rebutting a Rating of Permanent Disability Under the AMA Guides

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

This applicant had an admitted industrial injury.

The applicant saw an Agreed Medical Evaluator (AME) who gave her disability. The AME gave the applicant a loss based upon Activities of Daily Living (ADL).

The case went to trial and was rated. The rater testified the AMA Guides to Permanent Impairment did not permit an AME to compute a Whole Person Impairment (WPI) directly from a ADL loss. The Workers’ Compensation Judge (WCJ) allowed rebuttal of the guides and gave the applicant a higher disability.

On Petition For Reconsideration the Workers’ Compensation Appeals Board (WCAB) indicated the guides are rebuttable, but could not go outside the four corners of the AMA Guides.

The appellate court indicated in order for the physician to go outside the four corners of the guides or deviate from the guides, the physician must explain why and this has to be substantial evidence. There must be a sufficient evidentiary basis to go outside the guides. ==============

Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 18881 Von Karman # 250 Irvine 92612

Phone: 949 252-1300


The Workers’ Compensation Appeals Board (WCAB) Has Issued An En Blanc Decision In Ogilvie

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

The applicant had a workers’ compensation injury for which permanent disability was awarded. The original decision of the workers compensation judge (WCJ) was appealed and the WCAB issued an en banc decision on Feb 3, 2009.

The WCAB upon petition issued a new opinion September 3, 2009. The opinion is long and needs to be analyzed in its entirety.

The prime rulings are that a permanent disability rating is rebuttable. The burden of rebutting lies with the person disputing the rating. One method is to challenge one of the components of the rating. This must be consistent with Labor Code section 4660 (b) (2). Any evidence presented must constitute substantial evidence.

The WCAB can still determine that the evidence does not overcome any diminished future earning capacity (DFEC). They conclude that the ” primafacie evidence” rebuttable presumption is one affecting the burden o f proof not the burden of producing evidence. There are various ways the schedule might be rebutted. The decision needs to be studied in its entirety and will likely be heard by the appellate court.


You Must Apportion To Each Injury And The “Wilkinson” Decision Is No Longer The Law

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

The applicant alleged an injury to his back on November 19, 1999. The applicant had another injury to his back on January 27, 2000. The applicant filed an application for adjudication for each injury.

The applicant was seen by an Agreed Medical Examiner (AME). The AME found two specific injuries and gave separate disability for each injury.

The case proceeded to trial and a Workers’ Compensation Judge (WCJ) awarded the applicant 47 per cent permanent disability for the first injury and 23 per cent permanent disability for the second injury.

The applicant petitioned for reconsideration alleging that the WCJ should have awarded higher permanent disability utilizing a combined rating pursuant to Wilkinson v. WCAB (1977).

The appellate court indicated that current law precludes the merger of permanent disability ratings. The court analyzed Labor Code sections 4663 and 4664. It also reviewed SB 899. SB 899 repealed formed section 4750. It then analyzed Benson v WCAB (2009).

The court determined the Wilkinson decision was no longer good law and that each injury must have its own award.


WCAB Can No Longer Award Vocational Rehabilitation Unless There Was A Final Order

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

The applicant alleged a cumulative trauma. The applicant entered into a stipulated Findings and Award for 60% permanent disability. The applicant made a demand for vocational rehabilitation benefits in 2003.

Vocational rehabilitation benefits were originally provided in 2005. The applicant applied for retroactive vocational maintenance allowance in 2008 prior to commencement of benefits in 2005.

A Workers’ Compensation Judge (WCJ) did not make an award until January 13, 2009. The defendant appealed.

The WCAB ruled that the repeal of section 139.5 terminated any rights of the applicant since the award was not final before January 1, 2009. There was no saving clause adopted by the legislature.

The WCAB lost jurisdiction over non-vested or inchoate vocational rehabilitation claims. Therefore the applicant was not entitled to the retroactive award.


Ruling Finding Of No Apportionment Was Not Substantial Evidence

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

The applicant worked in the laundry facility for the employer. The applicant was exposed to fumes and chemicals in the employment. The applicant had no history of breathing problems prior to working for the employer Symptoms of respiratory problems commenced during employment and progressed to where the applicant could no longer work.

The applicant filed a claim for a cumulative trauma and the only physician reporting found it industrial. The physician indicated the applicant was 100% disabled but apportioned 60% to non industrial causation.

The Workers’ Compensation Judge (WCJ) found the case 100% industrial with no apportionment. The WCJ thought the apportionment was speculative. The Workers’ Compensation [Appeals Board (WCAB) agreed with the WCJ.

The appellate court reviewed existing case law. They reviewed “substantial evidence” and determined the WCAB did not use substantial evidence. Here the physician indicated there were two sets of factors contributing to the applicants current condition. They were both industrial and nonindustrial. This could not be ignored. If the WCAB questioned this they should have developed the record further under Labor Code section 5701. Therefore, the award was vacated.


Appellate Court Finds An Award for Permanent Disability Within the Range of Evidence

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 specific injury. The applicant was seen by a primary treating physician who indicated that the subjective complaints were “out of proportion” to the objective findings. The applicant was also seen by a qualified medical examiner who also did not detect any objective findings.

The case went to trial and the workers’ compensation judge (WCJ) made an award of 28% permanent disability. The case then involved multiple petitions for reconsideration and finally ended with a new trial resulting in a 38% disability. This last time on reconsideration the Workers’ Compensation Appeals Board (WCAB) reduced the award to 28% based on the range of evidence.

The appellate court then reviewed U.S. Auto stores v. WCAB (1971) 4 Cal. 3d 469 in which the Supreme Court indicated that the WCAB could make a finding with ” the range of evidience”.

The court then reiterated that the WCAB may rely on one physician for substantial evidence relying on LaVesque V WCAB. (1970) 1 Cal 3d 627. They indicated that even if this opinion is inconsistent with other opinions it may be substantial evidence Place v. WCAB (1970) 3 Cal 3d 372.

Thus, the old line of cases in regards to substantial evidence still appears viable.


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