En Banc Decision Regarding Testimony to Rebut Rating Schedule

This case has significant impact. The applicant apparently had an admitted injury. The case was tried. The Workers’ Compensation Judge (WCJ) found the applicant six per cent permanently disabled. The applicant presented rebuttal evidence to the Permanent Disability Rating schedule (PDRS). This was done by using a vocational rehabilitation consultant.

The Workers” Compensation Appeals Board (WCAB) in this en banc decision indicated that the parties are allowed under Labor Code section 4600 to present rebuttal evidence to the PDRS. Nothing in SB899 changed that concept. Surprising, the Board cited LeBoeuf V. WCAB.

In addition, there was a further question of who would bear the cost of this testimony. The Board analyzed Labor Code section 5811 and determined that the cost may be assessed to the defendant.

However, before the cost can be assessed the person must qualify as an expert for their report and/or testimony to be admitted. They discuss what type of opinion the expert may present. They indicate that the testimony of a vocational rehabilitation counselor may address diminished earning capacity, however, the qualifications of each expert must be determined on a case by case basis. The cost of this under 5811 should be balanced against the result obtained.

Discussion of Commercial Traveler Rule and Special Mission

This is a significant decision even though it is not a published case. It gives a good discussion of the commercial traveler rule, the special mission exception, and the little known theory of personal self-improvement.

The applicant was employed by the city as an accountant. The applicant was a Certified Public Accountant (CPA)but not required by the employer to be one.

The applicant attended a CPA convention in another state. It was not required. The applicant was not reimbursed for the trip. On the trip the applicant slipped and fell striking his head. He eventually died. A claim for death benefits ensued and the employer denied injury.

A trial was held and the Workers’ Compensation Judge (WCJ) found the death industrial. The WCJ found a “special mission”. The Workers’ compensation Appeals Board (WCAB) affirmed the decision. Defendant filed a Writ.

The appellate court overturned the decision. This is an excellent discussion of valid case law.

They discuss the commercial traveler exception to claim for industrial injury . They indicated the exception was inapplicable here. They then discuss the special mission exception and find that inapplicable as well. Finally, they discuss a little no exception of personal self- improvement and find that in applicable as well.

ACOEM Applies To Old Stipulation With Request For Award

This is a significant decision even though it is not a published case. It gives an indication of a course of action to take when this issue arises.

The applicant entered in a Stipulation With Request for Award in 1985. Under future medial care it indicated there “may be” need for the back and hip care upon reasonable demand.

The applicant continued to treat over the years. In July 2006 the applicant filed a Declaration of Readiness to Proceed because the employer did not provide chiropractic services.

The Workers’ Compensation Judge (WCJ) awarded the applicant chiropractic care. The defendant petitioned the Workers’ Compensation Appeals Board for Reconsideration (WCAB). The WCAB overturned the WCJ and indicated applicant did not need treatment within the ACOEM guidelines. The applicant filed for a writ that brought the case to the appellate court.

The appellate court indicated that under Labor Code Section 5307.27, ACOEM guidelines are presumptively correct, regardless of the date of injury.

The court also reviewed section 4604.5 and indicated that the standard of care used to determine whether the treatment is reasonable is not the standard of care in 1985, but the standard of care that is reasonable today. This is very important. Because the injury occurred prior to 2004 the 24-visit chiropractic limitation did not apply, however.

Court of Appeal Agrees With Costco Decision in Regard to PD Rating Schedule

This is a significant decision from the First Appellate district.

The applicant had suffered a cumulative trauma injury to her foot during the course of her employment. The applicant saw a Qualified Medical Examiner (QME) in August 2004. The QME did not believe the applicant was permanent and stationary. The QME offered no opinion as to whether the applicant would suffer permanent disability.

The applicant remained temporarily disability until declared permanent and stationary August 16, 2005. Applicant contended the 1997 rating schedule for rating permanent disability should be applied in this case. The defendant contended that the 2005 schedule was mandatory. A trial was held on this issue. The Workers’ Compensation Judge (WCJ) found the 1997 schedule applicable. The defendant appealed and the Workers’ Compensation Appeals Board (WCAB) affirmed the judges decision. The defendant then filed this writ.

This appellate court reviewed Labor Code 4660 (d). They reviewed the notice requirement Labor Code section 4061. The appellate court then reviewed Costco Wholesale Corp. V. WCAB (2007). The court then reversed the WCAB and the WCJ saying that the 2005 schedule applied.

This is now a series of cases that find this way. See my prior newsletters as well as San Francisco Marriott v. WCAB (Yamut)

Court of Appeal Agrees With Costco Decision in Regard to PD Rating Schedule

This is a significant decision from the Third Appellate district.

The applicant had an admitted injury to his neck and back in July of 2004. The applicant was paid temporary disability from July 13, 2004 through March 24, 2005.

At the time of trial the applicant contended that the 1997 schedule for rating permanent disabilities should be used for determining permanent disability. The defendants contended that the 2005 schedule should be used. The Workers’ Compensation Judge (WCJ) determined the correct schedule was the 1997 schedule. Defendants petitioned for reconsideration. The Workers’ Compensation Appeals Board (WCAB) denied the petition for reconsideration. The defendants filed this writ.

The appellate court reviewed Labor Code section 4660, subd. (B)(2) in regards to the effective date of the new rating schedule. The schedule went into effect on January 1, 2005. The appellate court also evaluated when Labor Code section 4061 notice was to be given.

The court then reviewed Pendergrass v. Dugan Plumbing 1 and then Pendergrass v. Dugan Plumbing 2. It then looked at Costco Wholesale Corp. v. WCAB and agreed with the Costco court that an employer “is required” to give notice under section 4061 within the meaning of 4660(d) when the employer makes the last payment of temporary disability, not when the payments commence.

This court agreed with the Costo court’s interpretation of section 4660 (d) and indicated the 2005 schedule should apply, not the 1997 schedule. The appellate court remanded to the WCAB for further action.

En Banc Decision of the WCAB on Surgery Center Billing

The WCAB evaluated a case on surgery center billing charges.

The surgery center in this case filed a lien for $31,007. The lien went to trial because the defendant disputed the charges. The Workers’ Compensation Judge (WCJ) allowed the full amount of the lien. The WCJ indicated the defendant did not raise the reasonableness and necessity of treatment in the Stipulations and Issues framed at the trial.

The WCJ indicated in the opinion that even if the defendant would have raised the reasonableness issue, the defendant did not meet the burden of proving the lien was unreasonable. The defendant filed a petition for reconsideration which resulted in this en banc decision.

The WCAB referred to a previous en banc decision in Kunz v. Patterson Floor Covering. They also cited another case for the proposition that the burden of proof lies with party or lien claimant holding the affirmative on the issue. In this case, the surgery center. The WCAB indicated that the defendant does not have the burden to show that the surgery center bill was unreasonable.

The WCAB indicated they believed the WCJ misinterpreted their holding in Kunz.

It appears that the WCAB is stating that a surgery center bill has to be reasonable on its face. It wont be presumed reasonable as several in the industry had contended. It must be reasonable on its face even if the defendant doesn’t challenge it. In this case the defendant never even raised the reasonableness at trial level and it was still sent back to the WCJ for evaluation of the bills reasonableness. Therefore, even though there may have been no defense the defendant prevailed.

Supreme Court Finally Decides Apportionment Case

The court looked at five different decisions of the Workers’ Compensation Appeals Board (WCAB). All of the cases had an apportionment issue. In each case there was either a previous industrial injury or a nonindustrial cause for the permanent disability. In each case the workers’ compensation judge (WCJ) applied the formula for apportionment used in Fuentes v. WCAB.

These cases went up on appeal resulting in differing appellate decisions. In Brodie v. WCAB the court did not adopt Fuentes. In Welcher v. WCAB the appellate court followed Fuentes.

In a very lengthy opinion the supreme court then went into the apportionment problem. In a great discussion they discussed the history and reasoning of the apportionment laws. In there analysis they discuss Labor Code sections 4658 and 4750.

The law was settled for 28 years until SB 899 was passed in 2004. Labor Code sections 4663 and 4750 were repealed. A revised section 4663 and a new 4664 section were enacted. This resulted in the court questioning whether Fuentes was still good law.

This resulted in three different approaches being applied by various Courts of Appeal and the WCAB. The Supreme Court needed to review to solidify opinion under one approach.

The Supreme Court reviewed SB 899 and its legislative history. They compared the old and new statutes. They asked the question whether the legislature intended to adopt a new and different formula and determined the answer was no.

Therefore, Fuentes is still the law for apportionment

Appellate Court Decides 132 (a) and Apportionment Case

This is a significant decision from an appellate court, on twoimportant issues.

The applicant developed pain in his elbows, wrists and hands and filed a workers’ compensation claim. The parties agreed to an Agreed Medical Examiner (AME) who determined that 70 % of the applicant’s problems were industrial and 30 % were nonindustrial.

The applicant returned to modified duties with the employer. The applicant need medical care for his injuries and the employer required him to use earned vacation time instead of sick time for medical appointments.

The applicant file a 132 (a) claiming discrimination for making him use vacation as opposed to sick time.

The applicant went to trial and the Workers’ Compensation Judge (WCJ) found no discrimination and found on amended award the need for apportionment under SB 899. The Workers’ Compensation Appeals Board (WCAB) concurred.

The appellate court indicated in regards to the discrimination that the employer did not establish a “legitimate business purpose for this discrimination.” They indicated that employer may not discriminate against active, industrially-injured workers in the use of sick leave.

The applicant contended that the apportionment was speculative. The AME indicated his apportionment was not precise and required some intuition and medical judgement. The court stated this does not mean his conclusions are speculative and therefore, the apportionment, was substantial evidence. The AME stated the factual basis for his determination were based on his medical expertise.

Post Termination Case Denying Injury Decided By Appellate Court

This is a significant decision from an appellate court, even though it is not certified for publication. It still cites cases that are certified and can be used.

The applicant worked for the employer as a ranch foreman until he was laid off. The applicant’s primary language was Spanish, but he understood some English.

The applicant testified that before 2:00 pm he instructed the office manager that he needed to see a doctor. He told the office manager he fell and he was uncertain she understood him. At 2:00pm he was laid off by a Vice President. He did not tell the Vice President he had suffered an injury. Later that afternoon he went to the company physician.

The applicant then reported the injury the following week. The claim form was filled out after the claimant had been laid off. The applicant testified he reported the injury timely.

The case went to trial and the Workers’ Compensation Judge (WCJ) found that the claim was not compensable under Labor Code section 3600 (a) (10). The WCJ indicated that the applicant failed to prove he notified the employer prior to lay off.

The applicant filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) denied reconsideration. The applicant appealed.

The appellate court indicated the applicant failed to convince the WCJ by a preponderance of evidence that he reported the injury. The applicant then argued Labor Code 5403 mandates that the employer show prejudice in order for 3600 (a) (10) to apply. The appellate court disagreed and indicated 5403 does not apply to 3600 (A) (10). They indicated that 5403 does not apply to injury claims filed subsequent to an employee’s notice of termination or layoff.

What Is a “Sudden and Extraordinary” Event For a Psychiatric Injury?

This is a significant decision from an appellate court, even though it is not certified for publication. It still cites cases that are certified and can be used.

The applicant worked for the employer for only two months. The applicant had an admitted injury to her neck and spine when she fell off a ladder. She was airlifted to a hospital and was admitted for five days.

The applicant subsequently alleged a psychiatric injury, which was denied.. The case was heard by a Workers’ Compensation Judge (WCJ) who found the applicant had an orthopedic injury, but no psychiatric injury because the applicant had not worked for the employer for six months as required by Labor Code section 3208.3, subdivision (d).

The applicant petitioned for reconsideration on the grounds that she met the exception to 3208.3 (d) that she suffered a “sudden and extraordinary condition” making the psychiatric component compensable. The Workers’ Compensation Appeals Board denied the petition on a split opinion.

The appellate court indicated that 3208.3 established a new and higher threshold for establishing a psychiatric injury. This court indicated that falling from a ladder was a ” sudden” event. However, it was not an extraordinary condition.

The court looked at other cases. They cited Wal-Mart Stores v WCAB and Matea v. WCAB. They indicated that falling off a ladder was not the type of event that would naturally be expected to cause a psychiatric injury even in a diligent and honest employee.

The applicants normal job duties included climbing a ladder. Therefore, the applicant was engaged in her normal job duties at the time of the industrial injury and this was not an extraordinary event.

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