An Appellate Court Has Overturned A WCAB Granting A Section 132(a)

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

The applicant had an industrial injury to his neck. The treating physician took the applicant off work. The applicant had a cervical fusion. The applicant entered in to a Stipulated Finding and Award for 20 per cent permanent disability with future medical care.

Prior to this, the applicant had applied to return to work. Whether the applicant could return to work was disputed by the employer. The case went to trial. The Workers’ Compensation Judge (WCJ) found that the employer was liable for a section 132 (a) violation.

The Workers’ Compensation Appeals Board (WCAB) on petition for reconsideration by the employer agreed there was a violation and awarded lost wages.

The appellate court reviewed numerous appellate decisions. They determined that the employer did not discriminate against the employee because the employer did not treat the applicant any different then they treated nonindustrially injured employees. The applicant made no showing that the employer treated him disadvantageously because of his industrial injury.


Compensable Consequence Based On Geographic Limitations Disallowed

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

The applicant had two admitted industrial injuries. The applicant resided in San Diego and was receiving treatment eight miles from her home.

The applicant went to visit her mother 136 miles from her home. The applicant claimed she was going home to go to a medical appointment. On her journey, she was in a motor vehicle accident. She claimed this accident was a compensable consequence of her industrial injury.

The Workers’ Compensation Judge (WCJ) indicated that the accident was a compensable consequence of the two original industrial injuries. The defendant appealed this ruling and the Workers” Compensation Appeals Board (WCAB) overturned the WCJ decision.

The appellate court reviewed the Laines decision, of the Supreme court, which allowed the journey to the medical appointment to be a compensable consequence of the original injury.

However, that case did not address whether there is a geographical limitation. Here the court indicated there has to be a reasonable geographic limitation on an employer’s compensability risk. This will be on a case by case basis


The Workers’ Compensation Appeals Board (WCAB) Has Issued An En Blanc Decision In Ogilvie

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

The applicant had a workers’ compensation injury for which permanent disability was awarded. The original decision of the workers compensation judge (WCJ) was appealed and the WCAB issued an en banc decision on Feb 3, 2009.

The WCAB upon petition issued a new opinion September 3, 2009. The opinion is long and needs to be analyzed in its entirety.

The prime rulings are that a permanent disability rating is rebuttable. The burden of rebutting lies with the person disputing the rating. One method is to challenge one of the components of the rating. This must be consistent with Labor Code section 4660 (b) (2). Any evidence presented must constitute substantial evidence.

The WCAB can still determine that the evidence does not overcome any diminished future earning capacity (DFEC). They conclude that the ” primafacie evidence” rebuttable presumption is one affecting the burden o f proof not the burden of producing evidence. There are various ways the schedule might be rebutted. The decision needs to be studied in its entirety and will likely be heard by the appellate court.


An Appellate Court Has Disallowed Vocational Rehabilition That Was Awarded By The WCAB

This a very significant case for workers’ compensation principles.

The applicant claimed a cumulative trauma and a specific injury. The Workers’ Compensation Judge (WCJ) found both injuries compensable in 2003.

In 2004 the applicant requested vocational rehabilitation. The employer denied the request and no services were offered.

The applicant filed with for benefits with the Rehabilitation Unit. The Rehabilitation Unit eventually awarded the applicant rehabilitation benefits in 2006.

The employer appealed and at trial the WCJ issued a decision indicating the applicant was entitled to vocational rehabilitation in 2008. The employer filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) denied the petition in October 2008 and affirmed the WCJ award of January 2008.

None of the parties raised the issue of whether Labor Code section 139.5 was repealed until this appeal. This appeal was filed after January 1, 2009. The appellate court ruled the applicant was not entitled to vocational rehabilitation because the decision was not final before this appeal was decided.


You Must Apportion To Each Injury And The “Wilkinson” Decision Is No Longer The Law

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

The applicant alleged an injury to his back on November 19, 1999. The applicant had another injury to his back on January 27, 2000. The applicant filed an application for adjudication for each injury.

The applicant was seen by an Agreed Medical Examiner (AME). The AME found two specific injuries and gave separate disability for each injury.

The case proceeded to trial and a Workers’ Compensation Judge (WCJ) awarded the applicant 47 per cent permanent disability for the first injury and 23 per cent permanent disability for the second injury.

The applicant petitioned for reconsideration alleging that the WCJ should have awarded higher permanent disability utilizing a combined rating pursuant to Wilkinson v. WCAB (1977).

The appellate court indicated that current law precludes the merger of permanent disability ratings. The court analyzed Labor Code sections 4663 and 4664. It also reviewed SB 899. SB 899 repealed formed section 4750. It then analyzed Benson v WCAB (2009).

The court determined the Wilkinson decision was no longer good law and that each injury must have its own award.


WCAB Can No Longer Award Vocational Rehabilitation Unless There Was A Final Order

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

The applicant alleged a cumulative trauma. The applicant entered into a stipulated Findings and Award for 60% permanent disability. The applicant made a demand for vocational rehabilitation benefits in 2003.

Vocational rehabilitation benefits were originally provided in 2005. The applicant applied for retroactive vocational maintenance allowance in 2008 prior to commencement of benefits in 2005.

A Workers’ Compensation Judge (WCJ) did not make an award until January 13, 2009. The defendant appealed.

The WCAB ruled that the repeal of section 139.5 terminated any rights of the applicant since the award was not final before January 1, 2009. There was no saving clause adopted by the legislature.

The WCAB lost jurisdiction over non-vested or inchoate vocational rehabilitation claims. Therefore the applicant was not entitled to the retroactive award.


Attorney Fees Pursuant To Labor Code Section 4607 Not Appropriate In Disputed Medical Case

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

The applicants in these consolidated cases had obtained Stipulations with Requests for Awards. Both stipulations included the need for medical care.

In the first case the applicant had a stipulation in 1997. Eight years later the applicant needed epidural injections. The carrier refused. The applicant appealed and the Workers’ Compensation Judge (WCJ) ordered the treatment. Applicant attorney sought attorney fees for obtaining the treatment pursuant to Labor Code section 4607.

In the second case the applicant had a stipulation and the carrier refused to pay for care for diabetes and weight loss. The WCJ ordered the treatment. Applicant attorney also requested fees pursuant to Labor Code section 4607. It was denied.

The Court of Appeal awarded both applicants attorney’s fees.

The Supreme Court reviewed the statutory language and indicated the language was very clear. The statute indicates that attorney fees are only to be instituted when a party institutes proceedings to terminate an award. Here the carriers did not institute proceedings to terminate the entire award of medical care. This would be challenging whether future treatment is needed at all.

Here the carriers were denying specific treatment. When the carrier only denies specific treatment attorney fees will not be awarded pursuant to Labor Code section 4607.


Ruling Finding Of No Apportionment Was Not Substantial Evidence

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

The applicant worked in the laundry facility for the employer. The applicant was exposed to fumes and chemicals in the employment. The applicant had no history of breathing problems prior to working for the employer Symptoms of respiratory problems commenced during employment and progressed to where the applicant could no longer work.

The applicant filed a claim for a cumulative trauma and the only physician reporting found it industrial. The physician indicated the applicant was 100% disabled but apportioned 60% to non industrial causation.

The Workers’ Compensation Judge (WCJ) found the case 100% industrial with no apportionment. The WCJ thought the apportionment was speculative. The Workers’ Compensation [Appeals Board (WCAB) agreed with the WCJ.

The appellate court reviewed existing case law. They reviewed “substantial evidence” and determined the WCAB did not use substantial evidence. Here the physician indicated there were two sets of factors contributing to the applicants current condition. They were both industrial and nonindustrial. This could not be ignored. If the WCAB questioned this they should have developed the record further under Labor Code section 5701. Therefore, the award was vacated.


Appellate Court Reviews A WCAB Ruling Finding No Injury Was Not Substantial Evidence

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

The applicant had an admitted injury to his left foot. There was conflicting evidence as to injury to his left great toe. The applicant continued working. He then sought medical treatment for swelling in the toe and it was determined that he had uncontrolled diabetes. The applicant developed infections which led to several surgical amputations.

The applicant contended the diabetes was “lit up” by the industrial injury and therefore compensable. Atrial was held on the issue. The Workers’ Compensation Judge (WCJ) determined the foot injury “lit up” the diabetic condition.

The employer filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) reversed the WCJ finding the medical evidence compelled and found the
injury was preexisting and therefore not compensable.

The appellate court reviewed the medicals and found they did not constitute substantial evidence. They indicated the standard is whether the medical evidence indicates within a reasonable medical probability the normal progression of the nonindustrial disease would have resulted in disability irrespective of the industrial injury


Appellate Court Overrules Wilkinson Decision

This is a very significant case for workers’ compensation purposes. This case originated with an en banc decision from the Workers’ Compensation Appeals Board (WCAB).

The applicant had an admitted specific injury. The applicant also filed a cumulative trauma application in addition to the specific injury. The applicant was seen by an agreed medical examiner who found the applicant 62% permanently disabled. The doctor apportioned 50% to the specific and 50% to the cumulative trauma.

The workers’ compensation judge (WCJ) issued a single award of 62 percent applying Wilkinson v. WCAB (1977). On petition for reconsideration the WCAB overturned the decision indicating SB 899 abrogated the Wilkinson doctrine and apportioned two separate awards of 31%.

The appellate court indicated that Wilkinson was based upon Labor Code section 4750.

SB899 repealed section 4750 and added new apportionment statutes 4663 and 4664. The court indicated the legislatures intent to adopt a new apportionment scheme inconsistent with Wilkinson.

The court did indicate that there may be limited circumstances when the physician cannot apportion between the injuries. In these limited circumstances then there would be one combined award. That was not the case here.


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