Court of Appeal overturns WCAB decision on apportionment in published case

This is a court of appeal case

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

The applicant had a work related injury. The applicant saw private physicians that did not believe the applicants vision loss was work related. The Qualified Medical Examiner (QME) believed it was work related. However, he apportioned disability to a pre-existing condition.

After the doctor’s deposition he apportioned 15% to industrial and 85% to non industrial.

At trial the Workers’ Compensation Judge (WCJ) found the apportionment was not supported by substantial evidence and did not allow any apportionment. The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and indicated that the QME confused causation of injury with causation of disability. Therefore, no apportionment.

The appellate court reviewed Brodie, Zemke, Escobedo, etc. They also reviewed Labor Code section 4663 and 4664. The appellate court indicated the QME understood the distinction between cause of injury and cause of disability. It is not required that an asymptomatic condition become symptomatic to receive apportionment. It is only required that substantial medical evidence state that an asymptomatic condition was a contributing factor of disability. Here there was substantial medical evidence to allow apportionment.


The statute of limitations is determined by Labor Code section 5412

This is a writ denied decision

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

The applicant filed an application for a cumulative trauma to his neck and spine that ended on July 11, 2012. The application was not filed until July 6, 2015. This was almost three years after his last date of employment.

The applicant had prior complaints of neck pain and indicated that he thought the pain was caused by work. However, he did not report an injury. He also did not have a medical opinion that the neck complaints were work related. The applicant then obtained a medical opinion on July 14, 2014. It was determined at that time he had a work-related injury and he had permanent disability.

This was applicants first medical knowledge that the injury was industrial. The case went to trial and the defendant raised the statute of limitations as a defense. The Workers’ Compensation Judge (WCJ) found that under Labor Code section 5412 the date of injury was not until July of 2012, and therefore, the statute of limitations did not apply.

In denying the petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) noted that the applicant being aware of pain is not synonymous with knowledge of an industrial injury. The applicant is not charged with knowledge of the injury until they receive medical advice of the causal connection, unless the applicant has medical training or knowledge. This applicant did not. Therefore, the statute did not apply.


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.


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