The Court of Appeal Issued a Published Decision on Labor Code Section 3208.3 Definition of “Substantial Cause”

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

The applicant was a school teacher who claimed a cumulative trauma to psyche arising out of her employment. The employer denied the injury claiming a “good faith personnel action” under Labor Code section 3208.3 (h).

The applicant saw an Agreed Medical Examiner (AME). The applicant was then referred to an Independent Medical Examiner (IME) to determine apportionment between industrial and nonindustrial factors of disability.

The Workers’ Compensation Judge found on the IME report that the applicant had 15 percent non industrial factors, 51 percent to overall classroom teaching and 34 percent associated with the personnel actions. This 34 percent fell short of the 35-40 percent needed for a 3208.3 defense. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ on petition for reconsideration.

The defense maintained the non industrial factors should not be included in determining substantial cause and eliminated from the calculation. The appeals court disagreed and indicated the entire set of industrial and non industrial factors are taken into consideration.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 18881 Von Karman # 250 Irvine 92612

Phone: 949 252-1300


The Court of Appeal Issued a Non Published Decision on the Issue of Good Cause to Reopen Under Labor Code 5803

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

The applicant was injured In August of 2004. The applicant received treatment and eventually saw an Agreed Medical Examiner (AME). The AME gave disability which rated differently depending on whether you used the 1997 Permanent Disability Rating Schedule (PDRS) or the 2005 PDRS.

A trial was held and the Workers’ Compensation Judge (WCJ) awarded benefits under the 2005 PDRS. The only published case at this time was the Vera case. The WCJ relied on this case and the applicant received less disability than if the 1997 PDRS was used.

In October 2008 the applicant Petitioned to Reopen the case on a change in the law. In 2009 the WCJ ruled there was good cause to reopen based on a change in the law because of the cases of Genlyte and Zenith. The employer filed a Petition for Reconsideration and the Workers’ Compensation Appeals Board reversed the WCJ stating there had been no change in the law.

The appellate court annuled the WCAB decision and remanded the case to the WCAB to apply the Genlyte case and determine if there was substantial evidence based on the entire record.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 18881 Von Karman # 250 Irvine 92612

Phone: 949 252-1300

 


The Court of Appeal Issued a Non Published Decision on the Issue of Serious and Wilful Misconduct

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

The applicant was killed in an industrial accident. The accident occurred when a ripper shank fell off a crane killing the applicant.

After review of the accident, OSHA cited the employer for a “general safety violation”. The widow filed a Serious and Wilful Misconduct (S&W) claim under Labor Code sections 4553 and 4553.1.

The case went to trial and the Workers’ Compensation Judge (WCJ) found the employer liable for Serious and Wilful Misconduct. On petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

The employer filed a writ and the appellate court issued this opinion. It is a very good synopsis of all current law regarding S&W’s and violations of safety orders.

In both instances the Court of Appeal indicated there was not substantial evidence of a S&W. Even though the death was tragic there was no serious and wilful misconduct or a violation of a safety order for workers compensation purposes. Keep in mind the employer was cited by OSHA but this was not sufficient for a S&W.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 18881 Von Karman # 250 Irvine 92612

Phone: 949 252-1300

 


The Court of Appeal Issued a Published Decision on the Issue of Rebutting a Rating of Permanent Disability Under the AMA Guides

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

This applicant had an admitted industrial injury.

The applicant saw an Agreed Medical Evaluator (AME) who gave her disability. The AME gave the applicant a loss based upon Activities of Daily Living (ADL).

The case went to trial and was rated. The rater testified the AMA Guides to Permanent Impairment did not permit an AME to compute a Whole Person Impairment (WPI) directly from a ADL loss. The Workers’ Compensation Judge (WCJ) allowed rebuttal of the guides and gave the applicant a higher disability.

On Petition For Reconsideration the Workers’ Compensation Appeals Board (WCAB) indicated the guides are rebuttable, but could not go outside the four corners of the AMA Guides.

The appellate court indicated in order for the physician to go outside the four corners of the guides or deviate from the guides, the physician must explain why and this has to be substantial evidence. There must be a sufficient evidentiary basis to go outside the guides. ==============

Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 18881 Von Karman # 250 Irvine 92612

Phone: 949 252-1300


The Court of Appeal Issued a Published Decision on the Issue of Interest on Attorney Fees Awards

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

This case stems out of two applicants attorneys filing six related class action complaints alleging employers and insurers failed to pay them interest on attorney fee awards.

The trial court dismissed the action on a demurrer for lack of subject matter jurisdiction. The appellate court overturned this decision.

The appellate court looked at Labor Code section 5800 which governs the right to collect interest on compensation awards issued by the Workers’ Compensation Appeals Board. They analyzed the definition of “compensation” under this section.

The appellate court concluded that when a Workers’ Compensation Appeals Board award specifically provides for an attorney fee to be paid directly to the attorney, any post-award interest that accrues on the attorney fees must be paid directly to the attorney.

On a Findings and Award the defendant must calculate this and pay if appropriate. On a settlement it may be good practice to include a sentence that interest is waived if paid within 30 days.

 

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 18881 Von Karman # 250 Irvine 92612

Phone: 949 252-1300


The Court of Appeal Issued a Decision on What is an Extraordinary Event for Psychiatric Injury

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

The applicant filed a claim for workers’ compensation for a physical and psychiatric injury. The applicant was suspended from a tree when the trunk of the tree fell hitting him in the chest.

The defendant denied the psychiatric component on the grounds under Labor Code section 3208.3 (a) that the employee was not employed for 6 months. The employee claimed the exception that this was a “sudden and extraordinary event”.

The case went to trial and the Workers’ Compensation Judge (WCJ) and the WCJ agreed with the applicant. The defendant filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) overturned the WCJ indicating this was not an “extraordinary” event.

The appellate court indicated that the employee must demonstrate by a preponderance of the evidence that he suffered from a sudden and extraordinary event. In this case the appellate court indicated there was not enough evidence to determine if this was an extraordinary event and remanded it back to the WCAB. They indicated the WCAB decision was not substantial evidence.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 18881 Von Karman # 250 Irvine 92612

Phone: 949 252-1300


Ex Parte Communications With A Panel QME

This is a very significant case for workers’ compensation principles. The applicant filed a claim for workers’ compensation death benefits. The case proceeded to a Panel qualified medical evaluator (QME) to determine causation pursuant to section 4062.2

The QME wrote a report. A deposition was taken of the QME. The QME testified that he had relied on records in his report, but could not identify the source of the information. The QME telephoned the defense attorney, after the deposition to obtain the records. The defense attorney wrote applicant attorney of the telephone call. The applicant attorney requested the panel QME be stricken under Labor Code section 4062.3, for ex parte Communications

The Workers’ Compensation Judge (WCJ) found this not to be an improper ex parte communication. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

On appeal the appellate court indicated that 4062.3 is very specific. No ex parte communications are allowed at all. The legislature did not intend to provide any exceptions. Therefore, the panel QME was stricken.


Setting Aside A Stipulation With Request For Award

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

The applicant filed a specific injury and a cumulative trauma. The case went to trial and the Workers Compensation Judge (WCJ) found each injury was responsible for one half of the total permanent disability. One of the carriers on the cumulative trauma went insolvent and California Insurance Guarantee Association (CIGA) became involved.

In 2001 CIGA entered into a Stipulation on liability for the joint award. Over the years new cases developed that were directly related to CIGA.

In 2008, seven years after the stipulation CIGA petitioned the Workers’ Compensation Appeals Board (WCAB) for change of administrators and dismissal of CIGA based on a 2007 case.

The WCJ agreed with CIGA and stated the original stipulations were not valid. The WCAB agreed.

The appellate court reviewed section 5803 which deals with setting aside the order on the stipulation. They indicated that in this case the stipulation could not be set aside because it did not meet any of the exceptions to set aside the stipulations.



Spinal Surgery Second Opinion Process

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

The applicant suffered an injury to her back. Her primary treating physician referred her to a spine surgeon who recommended surgery.

The defendant submitted the request to the “Utilization Review Process” and the request was denied. The applicant was unrepresented at the time and did not object to the denial or seek a second opinion report. Applicant became represented an appealed.

The Workers’ Compensation Judge (WCJ) found the denial timely but that defendant did not seek a second opinion pursuant to sections 4062 (b) and 4610, and therefore, ordered surgery.

The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ and indicated surgery was not necessary.

The appellate court reviewed both the Brasher and Cervantes cases. They indicated that at the time of this decision Brasher was good law not Cervantes, therefore, they overruled the WCAB and remanded to authorize surgery or to initiate the second opinion process within 10 days of its order.

The Court details the whole process in the decision.


Decision On The Issue Of Independent Contractor

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

The applicant suffered injuries to the head, back, neck, shoulder, arm, hand and thumb when he fell from a roof at a diner.

The applicant only worked for the diner on two different occasions. The first time he trimmed bushes along the roof line. The second time, about a year later, is when he fell while trimming bushes at the roof line. He only worked on those two specific days. He was paid cash by the hour on the first occasion but was not paid on the second day , because he did not complete the work and never sent a bill.

He brought his own tools and arrived in his own truck on both occasions. The employer denied the injury being industrial on the basis the applicant was an independent contractor. The applicant files a claim before the Workers’ Compensation Appeals Board (WCAB). The case was heard by a Workers’ Compensation Judge (WCJ).

The WCJ ruled the applicant was an employee. The employer filed a petition for reconsideration and the WCAB found the employer did not control the details of the applicant’s work and therefore, he was an independent contractor. The Court of Appeal followed the S. G. Borello case to agree with the Board.


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