The applicant was injured in 1999.  The applicant received an award from the Ventura Workers’ Compensation Board. Within five years the applicant filed a Petition to Reopen, but filed it at the Los Angeles Board.

A trial was held at the Oxnard Board on the Petition to Reopen in 2010. The Workers’ Compensation Judge (WCJ) ruled that the Workers’ Compensation Appeals Board (WCAB) lacked jurisdiction over the Petition to Reopen because the petition was not timely filed at the correct board. At the time the applicant filed the petition, the venue regulations required him to file in Ventura not Los Angeles.

On Petition for Reconsideration the WCAB agreed with the WCJ.

The Court of Appeal reversed. The venue  regulations changed and the Court of Appeal considered this a procedural change that should not affect liability.

They further indicated that,  as a matter of law, relief should be granted under the theory of mistake, inadvertence or excusable neglect,  since the applicant merely filed at the wrong board.

This newsletter usually only reports on cases decided in California. This case was decided in a United States Court of Appeal regarding entitlement to workers’ compensation benefits under Michigan law. This decision will apply to California law as well. The case revolved around an alleged systematic attempt by the workers’ compensation carrier to deny benefits. The appellants in this case alleged a Racketeer Influenced and Corrupt Organizations Act (RICO) suit.

They alleged fraudulent denial of worker’s compensation benefits. They alleged among other things that the carrier employed a physician to deliberately deny benefits.

The appellate court indicated that even though state law punished the improper denial of benefits the appellants could still bring a RICO suit because that is under federal law.

Here the case was allowed to proceed because the RICO claims were not preempted by state law and because plaintiffs adequately pleaded a pattern of racketeering.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602, NB 92660

Phone: 949 252-1300

The applicant had a specific injury in 2000. The applicant

also filed a cumulative trauma from 2002 to 2004. The applicant was seen by an Agreed Medical Examiner (AME) for both injuries. The AME determined the applicant was 100 percent disabled.

The AME determined it was all the result of the specific injury and the cumulative trauma was a compensable consequence of the specific injury.

At trial the workers’ compensation judge (WCJ) found the applicant 100 percent without apportionment. The AME indicated the Benson case was not applicable here because Benson dealt with successive injuries while this was a compensable consequence.

The Worker’s Compensation Appeals Board (WCAB) agreed with the WCJ and denied the petition for reconsideration filed by the defendant. The Court of Appeal looked at Labor Code sections 4663 and 4664 and the Benson case.

The Court of Appeal indicated that successive injuries to the same body part under Brodie and Benson can not be rated as a single injury, except where the physician cannot parcel out the causation of the disability. There must be apportionment. This case was remanded for apportionment.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602

Newport Beach, ca 92662

The applicant sustained injury to his low back and right hip. The applicant began treatment for the injury through the employer’s medical provider network (MPN). For no apparent reason and without following the procedures of the MPN the applicant switched treating physicians to a non-MPN physician.

At a hearing on issues of temporary disability and attorney’s fees the workers’ compensation judge (WCJ) deferred any issues involving the MPN. The WCJ rejected the defendant’s arguments that the non-MPN physicians were inadmissible.

Defendant filed a Petition for Reconsideration, which resulted in this EN BANC decision.

The WCAB decided that non-MPN treatment reports are inadmissible where unauthorized treatment has been obtained outside a validly established and properly noticed MPN because the non-MPN physician is not the primary treating doctor. Therefore, these reports were not admitted into evidence.

 Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602, NB 92660

Phone: 949 252-1300

The applicant filed a claim for workers’ compensation for a work related injury while working for the Boy Scouts of America.

He was paid minimum wage. He was also given living quarters and utilities at the employer’s residence. In addition he received money for gas for his vehicle.

At trial before the Workers’ Compensation Judge (WCJ) it was disputed whether Labor Code section 4454 required including the market value of the living quarters, utilities and car allowance. The WCJ determined the average weekly wage only at the minimum wage. The intent of the parties was to pay applicant at minimum wage so the WCJ did not include the value of the other items.

The applicant petitioned for reconsideration and the Workers’ Compensation Appeals Board (WCAB) denied reconsideration.

The appellate court looked at section 4454 and analyzed lodging in exchange for services to the employer and fuel as remuneration where the employer does not reimburse the applicant.

Here they determined the lodging, fuel and utilities were remuneration to the applicant and should have been considered in calculating the applicant’s average weekly wage. The case was remanded to the WCAB to make the proper calculations.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602 Newport Beach

Phone: 949 252-1300

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 Workers’ Compensation Judge (WCJ) issued a credit to the employer in this case in the amount of $13,133.33. The correct amount should have been $13,133.36. There was a three cent error.

Instead of calling the Judge and notifying the Judge of the clerical error the defense attorney filed a Petition for Reconsideration over the three cent error. The WCAB sanctioned the defense attorney $500 for filing this petition. The Board gave the defense attorney the opportunity to object to the sanctions. The defense attorney objected saying that the defense did not have to pay more than it owed.

The whole matter could have been averted if the defense attorney would have captioned the petition that the defendant was only seeking correction of a clerical error and the petition was filed as an alternative if the correction was not completed.

Once it was filed it set in motion the procedure requiring all of the commissioners time and the staff over a sum of three cents.

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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 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 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 applicant sustained an admitted injury to his back, right hip, and neck. The applicant was sent for medical treatment by the employer to the employer’s Medical Provider Network (MPN) physician. The applicant changed treating doctors at the request of his attorney. The new physician was not in the employer’s MPN.

The matter proceed to trial on the issue of temporary disability and the employer raised the issue of the MPN. The Workers’ Compensation Judge (WCJ) found the applicant temporarily disabled on the report of the non MPN doctor. The defendant alleged the non MPN reports were inadmissible.

The defendant filed a petition for reconsideration.

The WCAB reviewed the applicable statutes including Labor Code section 4616. The WCAB also reviewed current case law and concluded that admission of reports from non-MPN doctors where treatment was improperly obtained outside the MPN will not be admitted and can not be relied on.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602 Newport Beach ca 92660

Phone: 949 252-1300