Applicant is deemed one hundred percent disabled with no need for apportionment

This is a Board panel decision

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

The applicant suffered an injury to his head, neck, back, shoulders, circulatory system,and psyche as  aresult of an industrial motor vehicle accident.

The applicant saw multiple doctors including a primary care physician (PTP), neurological Qualified medical examiner (QME), and psychological Qualified medical examiner.

The psychological Qualified medical examiner apportioned 5 per cent to non industrial causes. A vocations expert testified the applicant was 100 per cent totally disabled.

The case went to trial. The  Workers” Compensation Judge (WCJ) found that the applicant was 100 percent disabled and there was no legal basis for apportionment. The WCJ declined to follow the apportionment found by the psychological qualified medical examiner.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) reviewed the report of the psychologist  They determined that the apportionment was not legal apportionment.

The psychologist did not explain how and why the apportionment contributed to his permanent disability.

Based on the opinions of the QME,  PTP and vocational expert the applicant was deemed to be 100 per cent disabled.

Valdes v. City of Torrance

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


If you file a DOR a petition for contribution is not required for contribution

This is an order denying a writ of review

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

Applicant filed a specific injury and a cumulative trauma. The first defendant covered the specific and part of the cumulative trauma.

Based on  an Agreed Medical Examiner (AME)  the date of the end of the cumulative trauma changed. The first defendant entered into a compromise and release for a cumulative trauma since the AME found no specific injury.

Eight days later the Workers’ Compensation Judge (WCJ) joined the second defendant on the cumulative trauma.

The first defendant filed a Declaration of Readiness to Proceed (DOR). The second defendant objected to the DOR “on contribution issues”. No petition for contribution was filed within one year.

The second defendant claimed to an arbitrator that the contribution issue was barred because no petition for contribution was filed within one year. The first defendant claimed estoppel indicating the second defendant knew of the contribution issue timely by way of DOR and emails. The arbitrator found the contribution issue timely.

The Court of Appeal in denying  the second defendant’s writ indicated that a DOR is satisfactory under Labor Code section 5500.5 and WCAB Rule 10510.  The DOR was deemed sufficient to institute proceedings.

Brotherhood Mut. Ins. V WCAB

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


Psychiatric injury is supported by substantial medical evidence and compensable as extraordinary event

This is a Board Panel decision

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

The applicant was a tree trimmer employed less than 6 months. A coworker inadvertently put applicant’s climbing rope in to  a wood chopper. This resulted in a left leg dislocation and later surgical amputation. The defendant accepted injury to multiple body parts but not to psychiatric injury.

At trial the Workers’ Compensation Judge (WCJ) found the orthopedic compensable but did not rule on whether the applicant’s injury resulted from a “sudden extraordinary employment condition.”

Defendant petitioned for reconsideration indicating there was no psychiatric injury under Labor Code section 3208.3 (d) because the applicant had not worked 6 months. and the “sudden extraordinary exception” to this code section did not apply.

The Workers’ Compensation Appeals Board (WCAB) reviewed Matea v WCAB and SCIF v WCAB (Garcia). They indicated the facts revolved whether the injury was “uncommon, unusual and unexpected and did not result from a routine and regular event.”

They ruled the applicant showed the manner in which his leg was amputated was from an “uncommon, unusual and unexpected event” and not from a “routine and regular employment event.”

Therefore, the psychiatric claim was compensable .


Panel finds good cause to set aside Order Approving Compromise and Release

This is a Board panel decision

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

The applicant sustained an accepted cumulative trauma injury to the low back and hips while working as a maintenance worker. The applicant saw a primary treating doctor who did not discuss permanent disability in his report.

A claims adjuster offered the unrepresented applicant a $7500 settlement without negotiations and did not explain the applicant had a right to a Qualified Medical Examiner (QME).

The applicant did not know what permanent and stationary meant and signed a Compromise and Release (C&R) that stated applicant’s temporary disability was ongoing based on the primary treating doctor. The C&R stated the applicant was not permanent and stationary.

Defendant’s attorney got the C&R approved on a walk-through. Two days later the defendant sent applicant a letter indicated his temporary disability was discontinued and his right to dispute this.

The applicant retained counsel who filed a petition to set aside the C&R. The Workers’ Compensation Judge (WCJ) concluded there was no good cause to set aside the C&R. The applicant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ. The panel ruled the applicant had not been given adequate notices of his rights before entering into the C&R.

Moreno v Hidden Valley Ranch


Ruling on cancer presumption under Labor Code section 3212.1 is upheld

This is an order denying appellate review

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

The applicant was employed as a probation officer. He was assigned to the
Narcotics Task Force under his employment for nearly two years. This was
through the State Bureau of Narcotics Enforcement. However, the County
where he was a probation officer paid his salary.

He was designated a Special Agent of the State and reported directly to the State. He had job duties that included incinerator operations and exposure to known carcinogens. The applicant later developed pancreatic cancer while employed by the County and filed a Workers’ Compensation claim asserting the cancer presumption of Labor Code section 3212.1.

The case went to trial and the Workers’ Compensation Judge (WCJ) found that there was substantial medical evidence supporting the applicant’s entitlement to the Labor Code section 3212.1 cancer presumption.
The applicant filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) in a Board panel decision agreed with the WCJ.

This resulted in the defendant filing for a Writ of Review with the appellate court. The appellate denied defendant’s petition for writ of review, concluding that substantial medical evidence supported a finding of the cancer presumption.


Applicant is ruled Initial Physical Aggressor and the case is ruled Non Industrial

This is a Board Panel decision

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

The applicant was a school teacher. The teacher blocked a doorway to prevent students form leaving the classroom after class was over. He intended on telling several students they were failing the class.

A student attempted to exit the doorway. The teacher told the student to sit down. The student told the teacher to get out of his way. At that time some spit from the students mouth appeared to go toward the teacher. The teacher slapped the student in the face. The student them punched the teacher in the chest.

The teacher filed a workers’ compensation claim alleging a psychiatric injury with post traumatic stress. The case went to trial and the Workers’ Compensation Judge (WCJ) ruled the applicant suffered a psychiatric injury but compensation was denied by the initial physical aggressor rule. 3600 (a)(7). The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) reviewed case law including Mathews v. WCAB and Gegic v. WCAB.

The WCAB reviewed the psychiatrist report that applicant had sustained a psychiatric injury. Even though he had a psychiatric injury he was denied compensation as the initial physical aggressor.

The Board determined the student did not deliberately spit on the teacher it was just liquid released from his mouth while he was talking.


Applicant established Special Mission Exception to Going and Coming Rule

This is a Board Panel decision

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

The applicant was a doctor. He worked five days a week, 40 hours a week unless his supervisor asked him to work overtime.

His supervisor emailed him asking him to prepare a presentation. He walked to work. He left the hospital at 8 p.m. to walk home carrying his computer with the presentation. His supervisor called him to discuss the presentation. As he was talking to the supervisor he stepped off the curb and was hit by a car. He filed a claim and the defendant denied the claim base on the Going and Coming Rule. The case went to trial and the Workers’ Compensation Judge (WCJ) found the applicant was on a special mission and therefore, the claim was compensable.

The defendant appealed. The Workers’ Compensation Appeals Board (WCAB) indicated that under the going and coming rule injuries do not normally arise out of and in the course of employment. However, there are numerous exceptions.

The special mission exception is where the employee is performing (1) an extraordinary duty in relation to the employees duties; (2) is within the course of employment: and (3) has undertaken the duty at the express of
implied request of the employer for the benefit of the employer.

Here it was ruled the applicant was providing a service to the employer within the special mission exception.


This is a Board panel decision where a workplace cut or scrape led to an amputation that could become industrial

This is a Board panel decision

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

The applicant suffered a cut or scrape at work.  He also got a blister on his left toe.  The toe turned gangrene.  The applicant had new onset diabetes. His left foot progressively got worse.  The applicant first had an amputation to the low shin.  The condition spread and then he had an above-the-knee amputation.

The applicant saw an orthopedist who found the left toe gangrene was industrial.  The applicant then saw an internist that indicated the injury was not industrial.

The Workers’ Compensation Judge (WCJ) did not find applicant credible.  The applicant did not report any wounds to his foot to the employer.  The applicant filed a petition for reconsideration.

The Board reviewed the liberal construction code section 3202.  They also reviewed the case of Kimbol v IAC.  Then they reviewed McAllister v WCAB.  The Board indicated the question is whether there is a reasonable inference to support the claim for injury.

They looked at the existing medical opinions.  They concluded that the record was insufficient to determine causation. They suggested that the current physicians address the issue and if they cannot make a determination the WCJ should appoint a physician.

Therefore, they rescinded the decision and remanded for a determination on causation.


Board En Banc decision on supplemental job displacement benefit voucher

This is a Board En Banc panel decision

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

The applicant sustained an admitted injury. The parties resolved the injury by way of Stipulations with Request for Award. The award did not include a Supplemental Job Displacement (SJDB) voucher.

Prior to the settlement the defendant sent a Notice of Offer of Regular, Modified or Alternative Work. The letter accompanying the notice indicated that the applicant must verify that he is qualified to accept employment as an inmate laborer. You have voluntarily terminated your employment due to your release from prison.

The applicant filed a Request for Dispute Resolution and asked for resolution of the SJDB. The Administrative Director did not issue a determination and therefore, it was denied by operation of law.

The case went to trial and the Workers Compensation Judge (WCJ) indicated the appeal was untimely an denied the SJDB. The applicant filed a petition for reconsideration and the Workers Compensation Appeals Board (WCAB) ruled the applicant was entitled to a voucher. Defendant appealed.

The WCAB ruled AD rule 10133.54 invalid. They also ruled an employer must show a bona fide offer of regular work to avoid liability for a SJDB. Here there was no bona fide offer.


Board En Banc decision on declared state of emergency on spread of corona virus

This is a Board En Banc panel decision

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

Normally this newsletter is dedicated to providing cases related to the litigation of workers’ compensation. The world has changed and the existing order of all things has changed dramatically.

Most of the readers are now working remotely and the whole business procedure has changed.

The way we operate in Workers compensation has dramatically changed as well. The Workers’ Compensation Appeals Board issued on En Banc decision on March 18, 2020 temporarily suspending specific rules of Practice an Procedure. The decision applies to the entire state.

Dismissal of an application or lien claim for failure to appear is suspended. Workers’ Compensation Judges (WCJ) and arbitrators shall have an unlimited extension of time to issue reports in response to petition for reconsideration or removal. You no longer need two witnesses on a Compromise and Release. Signatures may be done electronically.

Suspension of requirement of service by mail on the WCAB. Service may be electronic with or without parties’ consent.

District offices are closed for filing until April 3, 2020. All filings are extended to the next day when the district offices reopen for filing. You will need to monitor when the district offices reopen. It may well be extended past April 3, 2020.

Be safe!


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