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


The Court of Appeal Issued a Published Decision in the Ogilvie Case

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

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 Appeals Board Sanctioned a Defense Attorney for a Petition for Reconsideration

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

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


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