A psychiatric claim on a petition to reopen was allowed even though it was never raised on original claim

This is a writ denied decision

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

The applicant suffered a compensable injury to his left shoulder, hands and neck due to a cumulative trauma. The case went to trial and the Workers’ Compensation Judge (WCJ) issued a Findings and Award for 69% permanent disability.

Thereafter, the applicant filed a timely Petition to Reopen for New and Further disability. The applicant alleged a psychiatric disability for the first time as a compensable consequence of the original disability. There was substantial evidence of the psychiatric disability before the original trial, but no psychiatric claim was made.

The WCJ found the applicant was precluded from raising the psychiatric claim on the petition to reopen. The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) found the applicant was not precluded from raising the psychiatric claim. They reasoned that even though applicant was aware of psychiatric symptoms there was no substantial evidence before the original trial establishing industrial causation.

Here, even though there was knowledge, there was no diagnosis using DSM III prior to the original trial.

The WCAB granted reconsideration. The Court of Appeal denied the writ that was filed. The court of appeal indicated that panel decisions are citable authority.


100 percent finding of permanent disability under Labor Code Section 4662 (b) overturned

This is a published court decision

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

The applicant suffered a compensable injury to his heart and psyche while employed as a correctional officer. The applicant received a 97 percent permanent disability rating for his heart. The rating for the psychiatric component was 71 percent. Combining the two ratings resulted in a 99 percent disability.

The case went to trial. The Workers’ Compensation Judge (WCJ) found the applicant 100 percent (permanent and total) disabled in accordance with Labor Code section 4662 (b). The WCJ did not mention or discuss the combined rating of 99 percent using the 2005 schedule of rating permanent disability.

The defendant filed a Petition for Reconsideration alleging the applicant was 99 percent disabled. The Workers’ Compensation Appeals Board (WCAB) reviewed Labor Code section 4660 and 4662 (b) and agreed with the WCJ that the applicant was 100 percent.

On review the Court of Appeal reviewed section 4660 and 4662. They also reviewed numerous cases. They reviewed Ogilvie, LeBoeuf, Jaramillo, among others. They concluded there was no basis for concluding section 4662 (b) provided a path to permanent disability. They indicated section 4660 is mandatory. The 2005 schedule is prima facie evidence of disability. In this case 99 percent. The case was remanded to the WCAB for further action.


California Supreme Court indicates utilization review is an exclusive remedy of California Workers’ Compensation

This is a published Supreme court decision

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

The applicant suffered a compensable back injury. The applicant also claimed anxiety and depression. A mental health physician prescribed a psychotropic drug, Klonopin.

A utilization review company was retained to determine whether Klonopin was necessary. Dr. Sharma on review determined the drug was medically unnecessary and decertified the prescription. Dr. Sharma did not warn of the risks of abruptly ending the drug and when the applicant immediately stopped taking the drug suffered a series of four seizures.

The applicant filed a civil suit against the utilization review company and Dr. Sharma. The defendants filed a demurrer alleging the workers’ compensation board had an exclusive remedy, so no civil suit was indicated. The trial court sustained the demurrer and the court of appeal sustained the demurrer.

The Supreme Court indicated that the injuries were derivative of a compensable workplace injury and within the scope of workers’ compensation. The court reviewed numerous statutes and case law. They also reviewed the exceptions to the exclusive remedy doctrine and found those exceptions were not applicable here.

They indicated the utilization process was within the exclusive remedy of the Workers’ Compensation Appeals Board.


Football player is denied workers’ compensation in California due to lack of jurisdiction by the state

This is a published appellate court decision

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

The applicant was a professional football player. He played 6 years in the National Football League. He played in 110 games in his career, but only two of those games were in California.

The applicant was living in Los Angeles and his agent was located in Newport Beach when they allege they signed his contract with the Indianapolis Colts. They allege this gave the state of California jurisdiction over his claim.

The Workers’ Compensation Judge (WCJ) found at trial that the applicant sustained a 67 percent permanent disability and California had jurisdiction. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ finding that neither the applicant nor his agent were in California when the contract was accepted and signed. Therefore, California did not have jurisdiction and they reversed the award.

The appellate court reviewed numerous cases and statues. They agreed with the WCAB that there was no binding agreement in California so California had no jurisdiction. The appellate court also ruled playing two games in California was not sufficient to make an award.


Assisting a police officer in active law enforcement makes that person an employee for workers’ compensation purposes

This is a published appellate court decision

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

This case did not come out of workers’ compensation but resulted from a summary judgment in a civil case for negligence and misrepresentation.

A deputy sheriff phoned husband and wife citizens and asked them for assistance in a 911 call that was received by the sheriff. The deputy explained he was miles away and asked them to go check on a 911 call the sheriff had received from their neighbor.

The couple (who were not employed by the sheriff) went to check on their neighbor. They stumbled in on a double murder in progress and were both attacked by a knife and suffered severe wounds.

They filed a civil suit against the county and the county filed a summary judgment claiming the couple were employees and their only recourse was workers’ compensation. The court agreed.

The court looked at Labor Code section 3366 that indicates that any person engaged in assisting a police officer is deemed an employee of the public entity.

The court defines active law enforcement under the statute and determined the couple were in active law enforcement. They indicated they were exposing themselves to risks inherent in preventing a crime by responding to a 911 call. Therefore, their only remedy was workers’ compensation.


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