Objection to a medical report is not a final order that allows you to file a writ for review with the appellate court

This is a published case

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

The applicant had an admitted injury. The applicant was evaluated by a psychiatric agreed medical examiner (AME). The AME referred the applicant to a chronic pain specialist. The chronic pain specialist recommended the applicant have 24 hour 7 day a week in home care and sent the report to the AME. The AME incorporated this report in the AME report.

The defendant objected to the report of the chronic pain specialist and moved to strike the report of the AME. Defendant alleged that there was no agreement to send the chronic pain specialist report to the AME and that sending the report was an improper ex parte communication.

The Workers’ Compensation Judge (WCJ) denied a petition to strike the AME report. The defendant filed a petition to remove or in the alternative a petition for reconsideration with the Workers’ Compensation Appeals Board (WCAB).

The WCAB denied the petition for reconsideration indicating the WCJ denial to strike was not a final order. The defendant filed a writ of review.

The court of appeal indicated that it is well settled that writs of review only apply to final decisions, orders or award of the WCAB. The denial of the petition to strike in this instance was not a final order. Therefore, the Writ was denied.


Applicant NFL player allowed to file a cumulative trauma and statute of limitations was tolled even though he had prior cases

This is a Writ Denied Case

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

This is a very unusual case for workers’ compensation purposes. Defendants rarely win a statute of limitations defense. This was a case where the defendant did not win even though applicant was represented in the past for specific injuries.

The applicant was a professional football player for the Miami Dolphins. He filed a cumulative trauma. Defendant never gave applicant notice of this workers’ compensation rights under the Reynold’s case.

The applicant did not learn of his right to file a cumulative trauma until he attended a retired players conference in 2010. He had been represented by attorney’s in previous specific injuries more than one year before he filed the cumulative trauma. He only had basic and general knowledge of his workers’ compensation rights.

The Workers’ Compensation Board (WCAB) determined that his earlier cases did not involve Labor Code section 5405. They indicated that no evidence was presented to show he had been informed of the statute of limitations in the earlier cases. The defendant did not show in the present case that the applicant had actual knowledge of the time limit for filing his workers compensation case more than one year before the claim at issue was filed. The WCAB indicated he needed actual knowledge and therefore the statute was tolled.


The Statute of Limitations was upheld in a Writ denied case

This is a Writ Denied case

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

This is a very unusual case for workers’ compensation purposes. Defendants rarely win a statute of limitations defense. This was a case where the defense prevailed.

The applicant was a hostess and claimed a specific injury on 4/5/2008. The applicant waited until 2/6/2013 to file an Application for Adjudication of Claim. The Workers’ Compensation Judge (WCJ) found that the claim was not barred by the statute of limitations.

A Petition for Reconsideration was filed by the defendant. The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ.

The WCAB found that there was no reason to toll the statute. Applicant did not show that the defendant had sufficient notice of her claim. They also found there was no reason to provide a claim form or notice of potential eligibility for benefits.

They also indicated that a specific injury is different than a cumulative trauma. In a specific injury the statute of limitations begins to run from the date of the injury’s occurrence and not the date of knowledge. In a cumulative trauma it runs from the date of knowledge.

They further indicated there was no prejudice for the defendant to raise the statute of limitations.


The doctrine of Laches was not applied in a case where the employer was given notice of injury

This is a decision of the Court of Appeal certified for publication

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

The applicant was a restaurant manager. One day at work rain was coming into the restaurant where the applicant worked. The applicant went outside with a ladder to inspect the area. A few minutes later the applicant was found unconscious next to the ladder outside.

The applicant suffered a brain hemorrhage and was paralyzed from the shoulders down. After the accident the applicant continued to receive 24 hour medical attention.

The applicant’s wife informed the employer the next day of the injury. The employer denied getting this phone call. At a hearing the Workers’ Compensation Judge (WCJ) found the testimony of the wife more credible than the employer and that notice was given the next day.

The employer never provided a claim form or a notice of potential eligibility for workers’ compensation benefits to the applicant. The applicant did not file a claim for 7 years.

The defendant raised the doctrine of laches as a defense to paying benefits. The WCJ found that the employee was never given notice of the right to benefits so the limitations period for filing a claim was tolled. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

Here there was an absence of delay so laches did not apply.


Workers’ Compensation Appeals Board decides what is a “violent act” for a psychiatric claim

This is a decision of The Workers Compensation Appeals Board

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

The applicant had an admitted injury to her neck, back and shoulders when she was struck by a car in a parking lot. She also alleged a psychiatric injury to this accident.

The defendant alleged that the psychiatric component of the injury is not compensable under Labor Code section 4660.1 (c). Defendant contended that being struck by a car is not a “violent act” which is necessary under the code for the psychiatric injury to be compensable. Defendant contended that a “violent act” has to be either criminal or quasi-criminal violence to be compensable.

The WCAB in this opinion and order denying petition for reconsideration reviewed Labor Code section 3208.3 as well as 4660.1 (c). The WCAB determined that being struck by a car was a “violent act” within the meaning of the statutes.

They concluded that for the purpose of Labor Code section 3208.3 a “violent act” is not limited to just a criminal or quasi-criminal act.

The definition of “violent act” may include acts of strong physical force, intense or extreme force, or are “vehemently or passionately threatening”.

Therefore, in this case the applicant was awarded a psychiatric injury in addition to the physical injuries.


Appellate Court finds a decision made by Independent Medical Review after the 30 day time limit is sufficient

This is a published decision of the appellate court.

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

The applicant had an admitted injury to her left foot and back. Applicant requested an epidural injection The carrier denied the request. Applicant requested an independent medical review.

The independent medical review (IMR) issued after 30 days denying the epidural. The applicant appealed the IMR determination to the Workers’ Compensation Appeals Board (WCAB). A Workers’ Compensation Judge (WCJ) determined the IMR determination was 13 days late, but the decision was still binding.

The applicant petitioned for reconsideration and the WCAB decided that the treatment was necessary. The defendant filed a writ with the appellate court.

The appellate court reviewed the statutes effecting Utilization Review. They reviewed Labor Code section 4610. They determined that an IMR decision as a matter of law is the final determination and binding on all parties.

The court focused on whether the word “shall” in the statute is directory and not mandatory. The statute contained no consequence or penalty if the IMR decision was not timely. If it was interpreted as mandatory that would yield absurd results. Therefore it was considered directory. The case was remanded back to the WCAB since the 30 day time limit was not mandatory.


Appellate Court finds death industrial related on circumstantial evidence by physician

This is a published decision of the appellate court.

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

The applicant was working as a dishwasher at a restaurant. The decedent had to take out the trash to a dumpster. He took a trash can on a dolly over 300 feet to a dumpster. It was circumstantial evidence that he had to lift the trash can to put it on the dolly.

The decedent was found dead by the dumpster. He was found with coagulated blood and bloody foam on his face. The autopsy concluded that he died from a hemorrhage from a sequelae of tuberculosis.

The physician hired by the family found that the exertion of taking out the trash resulted in the hemorrhage resulting in the death.

The Workers’ Compensation Judge (WCJ) found the physician reached a reasonable conclusion and found the death industrial related. The Workers’ Compensation Board (WCAB) reversed the WCJ finding the physicians report was based on speculation and the conclusion was not based on reasonable medical probability.

The court of appeal reviewed cases on circumstantial evidence. An inference may logically and reasonably be drawn. Here the physician drew an inference based on facts that could reasonably be drawn. The court indicated that a material fact to be proved may be logically and reasonably be inferred from circumstantial evidence. Therefore, the death was industrial.


Appellate Court discusses psychiatric injury resulting from sudden and extraordinary employment condition

This is a published decision of the appellate court.

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

The applicant was working for his employer for only 74 days when he fell and suffered numerous injuries. He suffered a fractured pelvis and injuries to the neck, right shoulder, right leg and knees. He suffered a sleep disorder and headaches. He had surgery to repair his pelvis and a torn meniscus. He had additional surgery to his right foot and ankle.

He filed for a psychiatric injury. He alleged depression, difficulty sleeping and panic attacks.

The case went to trial and the Workers’ Compensation Judge (WCJ) denied the claim for psychiatric injury. The WCJ indicated the claim was barred by Labor Code section 3208.3 in that the applicant did not work for the employer for 6 months and did not result from a sudden and extraordinary event.

The Workers’ Compensation Appeals Board (WCAB) on petition for reconsideration found it was caused by an extraordinary employment condition.

The appellate court reviewed the statute and relevant cases. They indicated that the slip and fall was an accident that could reasonably be expected to occur. It was not the result of a sudden and extra ordinary event. Therefore, there was no psychiatric injury. The case should be reviewed for the discussion of what constitutes a sudden and extraordinary event.


Physician challenges constitutionality of $150 filing fee on certain medical liens

This is a published decision of the appellate court

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

A physician and surgeon who provides services to workers’ compensation patients filed a writ with the court of appeal. The doctor alleges that prior to passage of SB 863 he would submit bills for payment and they would be paid or denied and he could file for a hearing.

After passage of SB 863 the physician indicates that if the insurer does not pay or only partially pays his bill for services he has to pay a fee to file his lien.

He indicates that he has multiple liens and does not have the “personal reserves” to pay the filing fees. He indicates SB 863 prevents him from assigning the accounts to secure financing. Therefore, he avoids providing care on a lien basis to applicants who have been denied treatment. He is not allowed to bill the applicant directly.

The court reviewed section 4903.5 and concluded that the $150 filing fee was a valid restriction on the right to file a petition. The fee was constructed to fight “lien abuse” and improve the functioning of an “out of control” lien abuse system. The fee was designed to prevent abuse of the system. The court indicates there is also a way for lien claimant to get reimbursed for the filing fee. Therefore, the court did not find the filing fee violated the constitution. Three applicants also filed for a writ of mandate but were deemed to lack standing.


Applicant awarded benefits while working at home of defendant who was growing marijuana at his residence

This is a decision denied judicial review

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

The applicant was hired by the defendant to perform household services including cooking, cleaning and construction projects at the defendant’s residence. The applicant was also hired to do tasks with the defendant’s illegal marijuana cultivation business. The applicant was paid $500 a week plus room and board.

The applicant was shot by an intruder and was paralyzed. He filed for workers’ compensation benefits against the uninsured homeowner.

The uninsured employers fund contended the applicant should not receive benefits because defendant was involved in an illegal business. Defendant was charged with a felony but charges were dismissed.

Since the applicant performed services within the home of the defendant he was covered under Labor code section 3351 (d). It was a legal employment relationship and fell within scope of Labor Code section 3600. The applicant was never implicated in any illegal activities.

The Worker’ Compensation Judge (WCJ) and Workers’ Compensation Appeals Board (WCAB) decided that the applicant would have been covered as a residential employee by the defendant’s home owner policy if he had one under section 3351(d). Therefore, the uninsured employers fund was liable.


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