The Court of Appeal Issued a Non Published Decision Involving Mistake, Inadvertence, or Excusable Neglect

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

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.


The United States Court of Appeals Appeals Issued a Decision in Michigan with Far Reaching Effects

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

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 Court of Appeal Issued a Non Published Decision on Apportionment

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

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 Workers’ Compensation Appeals Board Issued an EN BANC Decision on the Use of Non-MPN Physicians

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

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 Court of Appeal Issued a Decision on Calculation of Average Weekly Earnings

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

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


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