Applicant NFL player allowed to file a cumulative trauma and statute of limitations was tolled even though he had prior cases

This is a Writ Denied Case

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

This is a very unusual case for workers’ compensation purposes. Defendants rarely win a statute of limitations defense. This was a case where the defendant did not win even though applicant was represented in the past for specific injuries.

The applicant was a professional football player for the Miami Dolphins. He filed a cumulative trauma. Defendant never gave applicant notice of this workers’ compensation rights under the Reynold’s case.

The applicant did not learn of his right to file a cumulative trauma until he attended a retired players conference in 2010. He had been represented by attorney’s in previous specific injuries more than one year before he filed the cumulative trauma. He only had basic and general knowledge of his workers’ compensation rights.

The Workers’ Compensation Board (WCAB) determined that his earlier cases did not involve Labor Code section 5405. They indicated that no evidence was presented to show he had been informed of the statute of limitations in the earlier cases. The defendant did not show in the present case that the applicant had actual knowledge of the time limit for filing his workers compensation case more than one year before the claim at issue was filed. The WCAB indicated he needed actual knowledge and therefore the statute was tolled.


Appellate Court discusses psychiatric injury resulting from sudden and extraordinary employment condition

This is a published decision of the appellate court.

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

The applicant was working for his employer for only 74 days when he fell and suffered numerous injuries. He suffered a fractured pelvis and injuries to the neck, right shoulder, right leg and knees. He suffered a sleep disorder and headaches. He had surgery to repair his pelvis and a torn meniscus. He had additional surgery to his right foot and ankle.

He filed for a psychiatric injury. He alleged depression, difficulty sleeping and panic attacks.

The case went to trial and the Workers’ Compensation Judge (WCJ) denied the claim for psychiatric injury. The WCJ indicated the claim was barred by Labor Code section 3208.3 in that the applicant did not work for the employer for 6 months and did not result from a sudden and extraordinary event.

The Workers’ Compensation Appeals Board (WCAB) on petition for reconsideration found it was caused by an extraordinary employment condition.

The appellate court reviewed the statute and relevant cases. They indicated that the slip and fall was an accident that could reasonably be expected to occur. It was not the result of a sudden and extra ordinary event. Therefore, there was no psychiatric injury. The case should be reviewed for the discussion of what constitutes a sudden and extraordinary event.


Death Benefits Awarded to employee’s widow for a worker who died in the restroom with heart disease

This is a Court of Appeal non published case

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

The decedent was a tractor driver. He drove a tractor 10 hours a day and up to as many as 12 hours in one day. On one day he was washing mud off a tractor and disc when he reported having chest pain.

The foreman was going to drive the decedent to the doctor, but the decedent wanted to use the restroom first. He went in to a portable toilet and did not come out. The door was forced open and he was found dead.

The coroner indicated he died of natural causes. The widow filed a death claim. Two doctors reported that the heart attack resulted from the physical strain he exerted while using the restroom.

At trial the Workers’ Compensation Judge (WCJ) found the death compensable on the basis that his restroom activities arose out of and during the scope of his employment. A normal bodily movement was considered incidental to the employment.

Defendant filed for reconsideration. The Workers’ Compensation Appeals Board denied the petition and defendant filed a writ.

The appellate court upheld the decision indicating that when an employee suffers a heart attack brought on by strain it is compensable even though an idiopathic condition previously existed. The strain need not be unusual. The widow received a death benefit of $320,000.


Court of Appeal case on professional athlete filed seventeen years after the cumulative trauma

This is a Court of Appeal published case

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

The applicant filed a cumulative trauma injury as a professional athlete from 1981 to 1984 in 2011. The applicant was a member of the New York Knickerbockers an out of state basketball team.

The applicant played games in California and played preseason games for the Los Angles Clippers. He first learned of his right to file Workers’ Compensation benefits in 2011.

The Workers’ Compensation Judge (WCJ) found the applicant suffered a cumulative trauma to his back. The WCJ determined the Statute of Limitations and the Doctrine of Laches did not apply due to the applicant not being advised of his rights. The applicant was given a 76 percent disability.

The Workers’ Compensation Appeals Board (WCAB) affirmed the WCJ and concluded there was no denial of due process in exerting subject matter jurisdiction over the applicant.

On appeal the defendant filed an unverified petition for Writ of Review. After oral argument the court let the defendant file the verified petition. It was also argued the appeal was filed in the wrong district. The court indicated that filing in the wrong district is not a jurisdictional defect.

The appellate court indicated California had a legitimate interest over the applicant’s injuries and affirmed benefits. It was remanded to award attorney fees for defendant filing the petition for review.


Court of Appeal case on rebutting rating schedule using Ogilvie (the “LeBoeuf method”) is denied

This is a Court of Appeal published case

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

The applicant suffered a cumulative trauma injury to her neck and right shoulder. The parties went to an Agreed Medical Examiner (AME). The parties agreed that the AME correctly found the whole person impairment (WPI) to be 59 percent permanent disability. The applicant sought to rebut the rating with a vocational expert and the defendant provided their own vocational expert.

The Workers’ Compensation Judge (WCJ) reviewed the Ogilvie case after testimony. The applicant did not try to use the first or third rebuttal method in Ogilvie. The applicant sought to use the second rebuttal method. The WCJ found the applicant 59 percent disabled and did not rebut her diminished future earning capacity. The Workers’ Compensation Appeals Board (WCAB) reversed and remanded.

On remand the WCJ indicated the applicant had a 79 percent disability based on diminished future earning capacity.

The Court of Appeal reviewed Ogilvie in depth. In this case there was no reason to believe the applicant rebutted her diminished future earning capacity. There was no evidence that the injury even limited her rehabilitation prospects. Applicants cannot rebut their disability rating merely by offering an alternative diminished earning capacity.


WCAB should address a special death benefit under the PERS system in the WCAB proceedings

This is a published court case

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

The applicant was a guard at a prison when he was stabbed 8 times in the neck, shoulder and arm. He received a 44 percent permanent disability to his neck and psyche. He was demoted and had a poor relationship with his supervisor. He committed suicide.

The widow filed for workers’ compensation death benefits. She also filed for a finding of fact under section 21537 that would qualify her for a PERS special death benefit for police officers.

Labor Code section 4708 requires that when a member of PERS applies for death benefits the PERS Board be joined as a party defendant. The Workers’ Compensation Judge (WCJ) did not join the PERS Board. The WCJ found the death industrial and awarded $250,000 to the widow and legal fees of $30,000. There was no finding of fact pursuant to section 21537.

A petition for reconsideration was filed. The Workers’ Compensation Appeals Board (WCAB) indicated the PERS special death benefit was not before it and indicated CalPERS would have determine the issue on its own.

The appellate court annulled the decision and remanded to the WCAB. They indicated the PERS Board had to be joined and the WCAB calculate a coordinated death benefit.


Cancer presumption applied to firefighter after amendment to Labor Code

This is a published appellate court case

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

The applicant was a firefighter with the Department of Defense who developed stomach cancer. He died of stomach cancer in 2007. The widow filed for death benefits in 2009.

An Agreed Medical Examiner (AME) stated that the stomach cancer could have been due to exposures of carcinogens in the workplace. The AME concluded that if the presumption applied, the cancer would be industrially related.

The presumption was extended to the Department of Defense effective January 1, 2009. The sole issue in this case was whether the presumption applied in this case.

The Workers’ Compensation Judge (WCJ) indicated that the applicant failed to meet the burden of proof on industrial causation. The Workers’ Compensation Appeals Board (WCAB) on reconsideration decided that the applicant was not a part of a qualifying fire department since the legislation did not take effect until 2009.

The appellate court indicated that the fact that the death occurred prior to the effective date of the statute is not determinative. When a statute is found to be substantive as opposed to procedural it can have a retroactive effect. So they ruled that the WCAB erred and remanded.


The need of substantial evidence for psychiatric injury in the form of sleep disorder

This is a published appellate court case

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

The applicant suffered an admitted injury to his back. The applicant also alleged a psychiatric injury in the form of a sleep disorder. The applicant was evaluated by an Agreed Medical Examiner (AME) in orthopedics. The AME found the applicant permanent and stationary and apportioned 50 percent to non-industrial causation.

The applicant then was evaluated by a rheumatologist who diagnosed a sleep disorder.

The applicant was then referred to a psychologist. The psychologist stated that percentage of causation was greater than the legal threshold of 50 percent. The psychologist deferred on apportionment until the applicant was permanent and stationary from a psychiatric standpoint.

The case went to trial. The Workers’ Compensation Judge (WCJ) found the applicant sustained injury to the back and a sleep disorder. The applicant was permanent and stationary for his back, but temporarily disabled for the sleep disorder. Defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

Defendant filed a writ of review. The appeals court remanded the case back to the WCAB. The court indicated the psychologist’s report was not substantial evidence because there was no final determination on percentage of psychiatric apportionment since the applicant was still TD.


Case on tolling of the statute of limitations based on incompetency

This is a writ denied case

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

The applicant was a professional baseball player for the Houston Astros. Applicant had a massive stroke at age 34 rendering him physically and mentally disabled. He filed a cumulative trauma for various body parts including neurological. Twenty three days after filing the claim the applicant requested the case be dismissed. The Workers’ Compensation Judge (WCJ) dismissed the case.

More than a year later the applicant filed a second application. The defendant alleged the case was barred by the statute of limitations. The applicant alleged he was incompetent at the time he requested the original dismissal and asked that the original dismissal be set aside.

At trial the WCJ determined that the applicant was incompetent at the time he dismissed his case. This was based on medical evidence and testimony of the applicant that he was shocked to learn his case had been dismissed. The WCJ ruled that the statute of limitations was tolled. The WCJ ruled the dismissal null and void and appointed a guardian ad litem.

Defendant filed a petition for reconsideration and the Workers” Compensation Appeals Board (WCAB) agreed with the WCJ. The defendant then filed a Writ of Review. The appellate court found that there was no reasonable basis for filing the writ and returned the case to the WCAB to assess attorney fees against the defendant.


Case on substantial evidence and duty to develop the record by the WCAB

This is a non published appellate court case

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

The applicant had an admitted injury to his back. He also claimed an injury to his psyche in the form of a sleep disorder. The applicant saw an agreed medical evaluator (AME) in orthopedics. The AME found the applicant permanent and stationary and apportioned 50 percent of the injury to nonindustrial preexisting causes.

The applicant also saw a qualified medical examiner in rheumatology who could not make a determination on causation. The applicant also saw a secondary treating physician in psychology. This doctor found the applicant temporarily disabled but deferred on apportionment.

The case went to trial and the Workers’ Compensation Judge (WCJ) found that the applicant sustained injury to his back and psyche in the form of a sleep disorder. The defendant filed a petition for reconsideration and the Workers’ Compensation Appeals Board ( WCAB) denied reconsideration.
The appeals court indicated that psychiatric cases require that a psychiatric case requires that causation must be greater than 50 percent. In this case the psychologist report was not substantial evidence on causation because it deferred on causation and apportionment. The court indicated that the WCAB had a duty to develop the record. The WCAB can take additional evidence. The case was remanded.


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