Court of Appeal case on Independent Medical Review to resolve challenges to Utilization Review

This is a Court of Appeal published case

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

The applicant had an admitted injury to her right foot in 1997. The applicant had 3 surgeries on her right foot and developed pain in her left foot. She had to use a wheelchair which caused low back and bilateral-shoulder pain. She became depressed and after a trial a Workers’ Compensation Judge (WCJ) determined she was permanently totally disabled.

The applicant’s physician requested the applicant receive home health care eight hours a day, five days a week. The defendant sent the request to Utilization Review (UR). The request was denied after review by a physician. The applicant eventually requested Independent Medical Review (IMR). IMR determined that the home health care and four medications requested were not necessary.

The applicant appealed the IMR determination as a denial of due process. The appellate court determined that the Workers’ Compensation Appeals Board (WCAB) did not violate the applicant’s state constitutional rights or her federal due process rights.

The case was remanded by the appellate court to the WCAB to determine if the IMR decision was denied without authority under the Medical Treatment Utilization Schedule (MTUS).


Court of Appeal case on professional athlete filed seventeen years after the cumulative trauma

This is a Court of Appeal published case

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

The applicant filed a cumulative trauma injury as a professional athlete from 1981 to 1984 in 2011. The applicant was a member of the New York Knickerbockers an out of state basketball team.

The applicant played games in California and played preseason games for the Los Angles Clippers. He first learned of his right to file Workers’ Compensation benefits in 2011.

The Workers’ Compensation Judge (WCJ) found the applicant suffered a cumulative trauma to his back. The WCJ determined the Statute of Limitations and the Doctrine of Laches did not apply due to the applicant not being advised of his rights. The applicant was given a 76 percent disability.

The Workers’ Compensation Appeals Board (WCAB) affirmed the WCJ and concluded there was no denial of due process in exerting subject matter jurisdiction over the applicant.

On appeal the defendant filed an unverified petition for Writ of Review. After oral argument the court let the defendant file the verified petition. It was also argued the appeal was filed in the wrong district. The court indicated that filing in the wrong district is not a jurisdictional defect.

The appellate court indicated California had a legitimate interest over the applicant’s injuries and affirmed benefits. It was remanded to award attorney fees for defendant filing the petition for review.


Court of Appeal case on rebutting rating schedule using Ogilvie (the “LeBoeuf method”) is denied

This is a Court of Appeal published case

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

The applicant suffered a cumulative trauma injury to her neck and right shoulder. The parties went to an Agreed Medical Examiner (AME). The parties agreed that the AME correctly found the whole person impairment (WPI) to be 59 percent permanent disability. The applicant sought to rebut the rating with a vocational expert and the defendant provided their own vocational expert.

The Workers’ Compensation Judge (WCJ) reviewed the Ogilvie case after testimony. The applicant did not try to use the first or third rebuttal method in Ogilvie. The applicant sought to use the second rebuttal method. The WCJ found the applicant 59 percent disabled and did not rebut her diminished future earning capacity. The Workers’ Compensation Appeals Board (WCAB) reversed and remanded.

On remand the WCJ indicated the applicant had a 79 percent disability based on diminished future earning capacity.

The Court of Appeal reviewed Ogilvie in depth. In this case there was no reason to believe the applicant rebutted her diminished future earning capacity. There was no evidence that the injury even limited her rehabilitation prospects. Applicants cannot rebut their disability rating merely by offering an alternative diminished earning capacity.


WCAB allows applicant to testify remotely by SKYPE after being deported and unable to attend hearing

This is a writ denied case

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

The applicant suffered an industrial injury. The applicant was terminated from his employment and eventually deported. Due to the applicant being deported the applicant could not enter the United States legally.

The applicant could not attend a trial so applicant petitioned to be able to testify remotely by Skype or another method. The Workers’ Compensation Judge (WCJ) held a hearing to determine if the applicant could testify remotely. The WCJ ruled the applicant could testify remotely. The defendant filed a petition for reconsideration contending that the applicant should not be allowed to testify from Mexico by Skype due to being in the country illegally.

The WCJ indicated that just because someone resides outside the United States this does not terminate their legal rights. Once a person leaves the United States this does not terminate their rights under the California Labor Code.

The applicant was unavailable for trial as described by Evidence Code section 240. The applicant did not abandon his case. By allowing applicant to testify remotely at his own expense the WCJ indicated that both applicant and defendant were able to present evidence and cross-examine witnesses. The Workers’ Compensation Appeals Board denied reconsideration and allowed the applicant to testify remotely.


WCAB should address a special death benefit under the PERS system in the WCAB proceedings

This is a published court case

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

The applicant was a guard at a prison when he was stabbed 8 times in the neck, shoulder and arm. He received a 44 percent permanent disability to his neck and psyche. He was demoted and had a poor relationship with his supervisor. He committed suicide.

The widow filed for workers’ compensation death benefits. She also filed for a finding of fact under section 21537 that would qualify her for a PERS special death benefit for police officers.

Labor Code section 4708 requires that when a member of PERS applies for death benefits the PERS Board be joined as a party defendant. The Workers’ Compensation Judge (WCJ) did not join the PERS Board. The WCJ found the death industrial and awarded $250,000 to the widow and legal fees of $30,000. There was no finding of fact pursuant to section 21537.

A petition for reconsideration was filed. The Workers’ Compensation Appeals Board (WCAB) indicated the PERS special death benefit was not before it and indicated CalPERS would have determine the issue on its own.

The appellate court annulled the decision and remanded to the WCAB. They indicated the PERS Board had to be joined and the WCAB calculate a coordinated death benefit.


Combination of industrial and nonindustrial drugs caused applicant’s death to be work related

This is a published supreme court case

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

The applicant suffered neck and back injuries as well as a concussion from a fall that was industrial related. The applicant was prescribed medications industrially and non industrially.

The applicant died from a combination of the drugs. The widow filed for death benefits. The Qualified Medical Examiner (QME) determined the applicant died solely from medications prescribed by his personal physician not his workers’ compensation physician.

In deposition the QME indicated that the personal physician medications may have played a small role in the death.

The Workers’ Compensation Judge (WCJ) ruled the death industrial related. The Workers Compensation Appeals Board (WCAB) agreed with the WCJ. The Court of Appeal reversed indicating there was no substantial evidence.

The Supreme Court reversed the Court of Appeal finding the death industrial related. The court reviewed cause in fact and proximate cause. It indicated the workers’ compensation system is not based upon fault. It then reviewed substantial evidence and the contributing cause factor. The court reviewed numerous cases and statutes. Here there was substantial evidence that the drugs prescribed for the industrial injury contributed to the death. Therefore, the death was industrial.


Cancer presumption applied to firefighter after amendment to Labor Code

This is a published appellate court case

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

The applicant was a firefighter with the Department of Defense who developed stomach cancer. He died of stomach cancer in 2007. The widow filed for death benefits in 2009.

An Agreed Medical Examiner (AME) stated that the stomach cancer could have been due to exposures of carcinogens in the workplace. The AME concluded that if the presumption applied, the cancer would be industrially related.

The presumption was extended to the Department of Defense effective January 1, 2009. The sole issue in this case was whether the presumption applied in this case.

The Workers’ Compensation Judge (WCJ) indicated that the applicant failed to meet the burden of proof on industrial causation. The Workers’ Compensation Appeals Board (WCAB) on reconsideration decided that the applicant was not a part of a qualifying fire department since the legislation did not take effect until 2009.

The appellate court indicated that the fact that the death occurred prior to the effective date of the statute is not determinative. When a statute is found to be substantive as opposed to procedural it can have a retroactive effect. So they ruled that the WCAB erred and remanded.


The need of substantial evidence for psychiatric injury in the form of sleep disorder

This is a published appellate court case

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

The applicant suffered an admitted injury to his back. The applicant also alleged a psychiatric injury in the form of a sleep disorder. The applicant was evaluated by an Agreed Medical Examiner (AME) in orthopedics. The AME found the applicant permanent and stationary and apportioned 50 percent to non-industrial causation.

The applicant then was evaluated by a rheumatologist who diagnosed a sleep disorder.

The applicant was then referred to a psychologist. The psychologist stated that percentage of causation was greater than the legal threshold of 50 percent. The psychologist deferred on apportionment until the applicant was permanent and stationary from a psychiatric standpoint.

The case went to trial. The Workers’ Compensation Judge (WCJ) found the applicant sustained injury to the back and a sleep disorder. The applicant was permanent and stationary for his back, but temporarily disabled for the sleep disorder. Defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

Defendant filed a writ of review. The appeals court remanded the case back to the WCAB. The court indicated the psychologist’s report was not substantial evidence because there was no final determination on percentage of psychiatric apportionment since the applicant was still TD.


Case on tolling of the statute of limitations based on incompetency

This is a writ denied case

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

The applicant was a professional baseball player for the Houston Astros. Applicant had a massive stroke at age 34 rendering him physically and mentally disabled. He filed a cumulative trauma for various body parts including neurological. Twenty three days after filing the claim the applicant requested the case be dismissed. The Workers’ Compensation Judge (WCJ) dismissed the case.

More than a year later the applicant filed a second application. The defendant alleged the case was barred by the statute of limitations. The applicant alleged he was incompetent at the time he requested the original dismissal and asked that the original dismissal be set aside.

At trial the WCJ determined that the applicant was incompetent at the time he dismissed his case. This was based on medical evidence and testimony of the applicant that he was shocked to learn his case had been dismissed. The WCJ ruled that the statute of limitations was tolled. The WCJ ruled the dismissal null and void and appointed a guardian ad litem.

Defendant filed a petition for reconsideration and the Workers” Compensation Appeals Board (WCAB) agreed with the WCJ. The defendant then filed a Writ of Review. The appellate court found that there was no reasonable basis for filing the writ and returned the case to the WCAB to assess attorney fees against the defendant.


Case on substantial evidence and duty to develop the record by the WCAB

This is a non published appellate court case

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

The applicant had an admitted injury to his back. He also claimed an injury to his psyche in the form of a sleep disorder. The applicant saw an agreed medical evaluator (AME) in orthopedics. The AME found the applicant permanent and stationary and apportioned 50 percent of the injury to nonindustrial preexisting causes.

The applicant also saw a qualified medical examiner in rheumatology who could not make a determination on causation. The applicant also saw a secondary treating physician in psychology. This doctor found the applicant temporarily disabled but deferred on apportionment.

The case went to trial and the Workers’ Compensation Judge (WCJ) found that the applicant sustained injury to his back and psyche in the form of a sleep disorder. The defendant filed a petition for reconsideration and the Workers’ Compensation Appeals Board ( WCAB) denied reconsideration.
The appeals court indicated that psychiatric cases require that a psychiatric case requires that causation must be greater than 50 percent. In this case the psychologist report was not substantial evidence on causation because it deferred on causation and apportionment. The court indicated that the WCAB had a duty to develop the record. The WCAB can take additional evidence. The case was remanded.


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