Statute of Limitations Decision On Cumulative Trauma Injury

This newsletter does not normally report on unpublished decisions.However, this case has some significance.

In this case the applicant began working for the employer in 1985. In 2002, the applicant started having symptoms of hypertension, headaches, and insomnia. The applicant attributed this to stress in the work place.

The applicant visited a physician and told the physician assistant of the work related problems. The applicant continued working and did not immediately report a claim for Workers’ Compensation.

The applicant was subsequently demoted. The applicant believed he was going to have a nervous breakdown and resigned from the employer on September 10, 2004. On October 18, 2004 the applicant filed a claim form and Application for Adjudication.

The defendant declined to pay benefits because of the defense of the Statute of Limitations. The Workers’ Compensation Judge (WCJ) heard the case on the issues of date of injury and the statute of limitations only. All other issues were deferred. The WCJ found against the defendant.The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) denied the petition.

The appellate court reviewed Labor Code section 5412 to determine the date of injury for statute of limitations purposes. It looked at when the employment caused compensable disability. It cited previous cases stating that medical treatment alone, is not disability. However, it may be evidence of a compensable permanent disability. The question is not whether the applicant saw a doctor but whether there was a compensable disability.

Request for Rehabilitation Was Timely Under Labor Code 5405.5

This newsletter does not normally report on unpublished decisions.However, this case has some significance.

In this case the parties stipulated to a specific injury occurring on August 30, 1996.

On May 17 2001, within 5 years frm the date of injury, the applicant filed a “Petition to Reopen for New and Further Disability” ( Petition to Reopen).

The petition was for increased permanent, as well as, temporary disability. It did not include a request for vocational rehabilitation. On July 10 2002, nearly six years from the date of injury, the applicant amended the Petition to Reopen to include vocational rehabilitation.

The Rehabilitation Unit of the Workers’ Compensation Appeals Board (WCAB) determined they no longer had jurisdiction. The applicant appealed the decision to the Workers’ Compensation Judge (WCJ) who agreed, the request for rehabilitation, was not timely filed.

The applicant filed a petition for reconsideration an d the WCAB overturned the WCJ decision finding the request was timely filed. The defendant then appealed to the appellate court.

The appellate court reviewed Labor Code section 5410 in regards to filing within five years from the date of injury. The court reviewed two appellate decisions that found that Labor Code section 5405.5 extends the five years from the date of injury for the statute of limitations period. (Youngblood v. WCAB (1989) and Sanchez v WCAB (1990).

Since the applicant filed a timely petition to reopen the case, the subsequent amending of the application then related back to the original filing. Thus, even though the request was made after the five years in this case, the request was found to be timely.

Request For Spinal Procedures Addressed by WCAB

This newsletter does not normally report on panel decisions.However, this case has some significance.

In this case the parties stipulated to a specific injury on April 22, 2002. The treating doctor requested a trial of spinal cord stimulation. The defendant referred the request to utilization review. Utilization review denied the request. Defendant also filed a DWC Form 233 Objection to Treating Physician’s Recommendation for Spinal Surgery. The case went to trial and the Workers’ Compensation Judge (WCJ) awarded the spinal surgery. The defendant petitioned for reconsideration. The following opinion was generated by the Workers’ Compensation Appeals Board (WCAB).

” In response to the treating physician’s recommendation for spinal surgery, an employer has the following options: 1) authorize the surgery, 2) object to the surgery, pursuant to 4062 (b), by filing a DWC Form 233 within 10 days of receipt of the doctor’s recommendation, 3) submit the recommendation to utilization review, or 4) pursue both options 2 and 3, either simultaneously or by filing an objection after a utilization review denial, meeting the time lines for each process. The dispute will then be resolved under the second opinion procedures in section 4062 (b).”

In this case the defendant followed the correct procedure. Just because the WCAB did not meet its time lines is no reason to penalize the defendant. Therefore, the procedure must be completed even if the WCAB does not act timely. Only at that point can the WCJ make a decision. The decision must then be based on the merits of each individual case.

This case was then returned to the trial level.

New Decision On Penalty Provision Under New Penalty Statute

The applicant had an industrial injury that was admitted. The carrier entered into a stipulated award in the amount of $31,535.00. The carrier made timely payments until a new third party administrator took over handling of the file. The new third party administrator incorrectly assumed all payments had been completed and ceased making permanent disability payments to the applicant.

The applicant attorney sent a letter to the new carrier requesting an explanation of benefits. The carrier discovered their mistake and issued a self imposed 10% penalty. The applicant attorney filed for a 5814 penalty.

The Workers’ Compensation Judge (WCJ) issued a decision against the employer for a 25% penalty. The third party administrator filed a petition for reconsideration.

The appellate court reviewed section 5814. Section (a) deals with a 25% penalty. Section (b) indicates that the employer may issue a self imposed penalty of 10 % within 90 days of discovery of the mistake.

The appellate court indicated the discovery does not have to be by the employer. The discovery can be by the applicant or the applicant attorney. The court discusses what “discovery” means and indicates it is not defined in the statute. Therefore, the employer can discover the mistake through any means.

The court would not rule on whether the applicant attorney was entitled to a fee under Labor Code section 5814.5. This issues was remanded back to the WCJ.

The applicant attorney also requested attorney fees for responding to the Writ and the appellate court disallowed this request.

Applicability Of Correct Procedure in Rehabilitation Decision

This newsletter does not normally report on unpublished decisions.However, this case has some significance.

In this case the applicant had an admitted injury in 1996. The applicant returned to work in 1997. The applicant continued to work until the applicant resigned in 2001.

A physician issued a report saying the applicant was probably a qualified injured worker after the resignation.

The applicant notified the employer that he wished to receive vocational rehabilitation benefits in 2002. He also filed a cumulative trauma through the last day of employment.

Not having heard from the employer by 2004 the applicant filed a Request for Dispute Resolution. The employer did not respond to the request.

The Rehabilitation Unit of the Workers’ Compensation Appeals Board (WCAB) issued a decision finding the applicant entitled to rehabilitation and awarded retroactive benefits at the “delay rate”.

The employer appealed. However, the employer listed the wrong case number, incorrectly listing the cumulative trauma.

The applicant responded that the appeal lacked merit because the wrong case number was listed and the employer did not serve both the WCAB and the Rehabilitation Unit. The Workers’ Compensation Judge (WCJ) agreed that the appeal was not properly filed.

On reconsideration the WCAB reversed the WCJ and stated a minor procedural error does not prevent reconsideration.

The appellate court concurred and indicated they would not strictly apply technical rules of procedure.

Applicability of Permanent Disability Rating Schedule After January 1, 2005

This newsletter does not normally report on panel decisions.However, this case has some significance.

In this case the parties stipulated to a cumulative trauma injury to the applicant ending November 18,2002, at a hearing on January 6, 2006, before a Workers’ compensation Judge (WCJ).

The single issue to be decided was “Whether the permanent disability rating schedule adopted by the Administrative Director of the Division of Workers’ Compensation as of January 1, 2005 is applicable to the injury in this case or whether the rating schedule in effect prior to January 1, 2005 is applicable.

The WCJ found that the schedule only applies to injuries after January 1, 2005. Defendant filed a petition for reconsideration.

The Workers’ compensation Appeals Board (WCAB) issued this en banc decision. They held that under Labor Code section 4660 (d) the revised permanent disability rating schedule applied to injuries arising on or after January 1, 2005.

The prior rating schedule only applies to injuries prior to January 1, 2005 where one of the exceptions described in the third sentence of section 4660 (d) has been established.

In this case it was not determined whether there was an exception. Therefore, the case was remanded to the WCJ

The new rating schedule will apply unless the applicant can prove that an exception under Labor Code section 4660 (d) is applicable. Be sure to review this section on every case with a date of injury prior to January 1, 2005, to see if an exception is applicable.

Suspended or Disbarred Attorney Not Allowed to Practice Before the WCAB

This newsletter does not normally report on panel decisions.However, this case has some bearing since it shows a long history of practice by someone not authorized to practice in front of the Workers’ Compensation Appeals Board (WCAB).

Mr. Hoffman was admitted to the State Bar of California in 1972. In 1985 he pled guilty to two counts of Grand Theft. In 1986 he resigned from the State Bar, with disciplinary charges pending

In 1989 he began representing medical lien claimants. In 2005 a trial was held on why Hoffman should not be barred from further appearances before the WCAB. The Workers’ Compensation Judge (WCJ) found Hoffman violated Rule 10779. Hoffman had failed to petition the WCAB for permission to appear.

A former attorney who has been disbarred or suspended can not practice before the WCAB without first petitioning the Board. The practice of law precludes GIVING LEGAL ADVICE and preparing legal documents. Disbarred attorneys cannot file pleadings, negotiate settlements, prepare stipulations and other documents for mandatory settlement conferences and trials, appear at depositions, or engage in discovery.

The only work they appear to be allowed to do is legal work of a preparatory nature, such as legal research, assembling data, assisting in drafting of pleadings or briefs. Direct communication with the client is only allowed for non legal work like scheduling, billing and updates. They may accompany an attorney only for the limited purpose of clerical assistance at a deposition or other discovery matter.

You may wish to check if Hoffman and Associates has been involved in any of your lien claims to date.

Apportionment Application on Petition To Reopen

The applicant filed a claim for an injury March 22,1995. The claim was admitted and the case went to trial. The Workers’ Compensation Judge (WCJ) found permanent disability to the left ear, neck, and left upper extremity at 67%. This rating was determined by “baseball arbitration” under former Labor Code section 4065. There was no apportionment

The applicant filed a timely Petition To Reopen under Labor Code sections 5803, 5804 and 5410. The Petition To Reopen proceeded to trial March 2,2004. On April 19, 2004 SB 899 was passed. On April 23, 2004 the WCJ indicated the new law of apportionment would apply.

The applicant filed a Petition for Removal to the Workers’ Compensation Appeals Board (WCAB) contending apportionment under SB 899 could not be applied. The WCAB invited briefs from the workers’ compensation community.

The WCAB issued an en banc decision in this case. The WCAB indicated that when you file a Petition To Reopen you have reopened the issue of permanent disability. This may now include disability that could not be apportioned prior to SB 899. Therefore, on the Petition To Reopen you can now apportion to pathology, asymptomatic prior conditions, retroactive prophylactic conditions, etc. If the new number is lower that does not change the original award.

However, defendants should consider whether they should do a simultaneous Petition To Reduce.

Residential Employee Is Not Considered An Employee By Court Of Appeal

The applicant filed a claim alleging an injury on the first day on the job. The applicant was an experienced house painter. He did not have a contractors license. He was hired by a homeowner. He fell off a ladder and had serious injuries.

He filed a civil suit against the homeowner and a workers’ compensation claim. The homeowner had insurance. The homeowner denied employment pursuant to Labor Code section 3351, subdivision (d), and section 3352, subdivision (h). They were contending the applicant did not work enough hours to qualify to be an employee.

The case was tried by a Workers’ Compensation Judge (WCJ). The WCJ ruled that the applicant was an employee. A petition for reconsideration was filed by the defendant. The Workers’ Compensation Appeals Board (WCAB) took two years to make a decision. It upheld the WCJ.

The Court of Appeal overruled the WCAB. Section 3351, Subdivision (d) states you must work at least 52 hours and earn at least $100. During the 90 days preceding the injury. The applicant did not do so. The WCAB agreed that the applicant did not have the requisite number of hours or wages in this case

The Court of Appeal indicated that the inquiry should have ended at that point. However, the WCAB looked at an alternative definition of an employee under Labor Code section 3715. This section only deals with uninsured employees. It is undisputed in this case that the homeowner had insurance.

En Banc Decision On Apportionment Dealing With Compromise And Release

The applicant filed a claim alleging two claims for injury. The first was in December 2001. It was an injury to the back. It was admitted. The second injury was admitted, and occurred on August 2, 2002. It also was to the back.

On May 9, 1998 the applicant had a back injury. This injury resulted in the applicant having a lateral microdiscectomy. The applicant was rehabilitated. The case settled by compromise and Release in September 1999.

The applicant had a pre- employment physical that he passed, prior to the current injuries.

The case was tried by a Workers’ Compensation Judge (WCJ) who found for the 2001 and 2002 cases the applicant was not entitled to anything. The WCJ reasoned the applicant had a prior disability of no heavy work for the 1998 injury and the same restriction for the 2001 and 2002 injuries. Applicant petitioned for reconsideration. The Workers’ Compensation Appeals Board issued an en banc decision

They indicated that a compromise and release, without more, is not a basis for apportioning under Labor Code section 4664 (b). A compromise and release does not constitute an “award of permanent disability”

However, where there is a prior claim and Compromise and Release even thought there is no prior disability, the medical reports and other evidence may be “other factors”. Under Labor Code section 4663 “other factors… including prior injuries” are a proper basis for apportionment. Here, the WCJ did not consider that

The WCAB did indicate that you could rehabilitate yourself from a prior injury under section 4663, but not 4664.

Newsletter Sign up

Workers Compensation Feed

Recent Newsletters