Appellate Court Finds An Award for Permanent Disability Within the Range of Evidence
- Posted By: Harvey Brown
- February 1, 2009
This is a very significant case for workers’ compensation purposes. Even though this case is not published it cites published cases for principles that can be effectively utilized.
The applicant had an admitted specific injury. The applicant was seen by a primary treating physician who indicated that the subjective complaints were “out of proportion” to the objective findings. The applicant was also seen by a qualified medical examiner who also did not detect any objective findings.
The case went to trial and the workers’ compensation judge (WCJ) made an award of 28% permanent disability. The case then involved multiple petitions for reconsideration and finally ended with a new trial resulting in a 38% disability. This last time on reconsideration the Workers’ Compensation Appeals Board (WCAB) reduced the award to 28% based on the range of evidence.
The appellate court then reviewed U.S. Auto stores v. WCAB (1971) 4 Cal. 3d 469 in which the Supreme Court indicated that the WCAB could make a finding with ” the range of evidience”.
The court then reiterated that the WCAB may rely on one physician for substantial evidence relying on LaVesque V WCAB. (1970) 1 Cal 3d 627. They indicated that even if this opinion is inconsistent with other opinions it may be substantial evidence Place v. WCAB (1970) 3 Cal 3d 372.
Thus, the old line of cases in regards to substantial evidence still appears viable.
- Posted In: Disability
Apportionment for Pre-Existing Pathology and Did Not Find Age Discrimination
- Posted By: Harvey Brown
- January 1, 2009
This is a very significant case for workers’ compensation purposes. Even though this case is not published it cites published cases for principles that can be effectively utilized.
The applicant had an admitted specific and cumulative trauma injury. The applicant was seen by an agreed medical examiner (AME). The AME determined that 20 percent of the applicant’s disability was due to her preexisting pathology.
At trial the workers’ compensation judge (WCJ) indicated that 20 percent of the applicant’s disability was nonindustrial. The applicant presented a vocational rehabilitation expert at trial to indicate the applicant’s loss of future earning capacity was 100 per cent.
The applicant filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.
The appellate court indicated the apportionment was not speculation. The applicant claimed that the apportionment violated age based discrimination under Government Code section 11135. The appellate court indicated the apportionment was not based on age.
In addition the applicant tried to argue the applicant was 100 percent based on the LeBoef V. WCAB and this was disallowed.
- Posted In: Discrimination