Board En Banc decision finds Administrative Director Rule 10133.54 Invalid

This is a Board En Banc panel decision

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

The applicant sustained an injury to his right wrist. The parties settled the case by Stipulations with Request for Award. The settlement did not include a supplemental job displacement benefits voucher (SJDB).

Defendant sent applicant a Notice of Offer of Regular, Modified or Alternative Work. Applicant filed a Request for Dispute Resolution Before Administrative Director requesting that the applicant be given a SJDB and objected to the offer of regular, modified, or alternative work.  The Administrative Director did not issue a determination pursuant to AD rule 10133.54 (f). The request was deemed denied.

The applicant filed a Declaration of Readiness to proceed on request for SJDB. The Workers’ Compensation Appeals Judge (WCJ) issued a decision that the applicant’s appeal was untimely. The applicant filed a Petition for Reconsideration contending he  was entitled to the SJDB.

The Workers’ Compensation Appeals Board (WCAB) issued a decision rescinding the WCJ and concluding the WCAB has exclusive jurisdiction over SJDB irrespective of AD rule 10133.54. Defendant sought reconsideration of that decision.

The WCAB ruled AD rule 10133.54 is invalid because it exceeds statutory authority. The WCAB has exclusive jurisdiction. It also ruled an employer must make a bona fide offer of employment.


Board panel rescinds Workers’ Compensation Judge (WCJ) decision finding separate and distinct injuries

This is a Board panel decision

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

The applicant worked for the employer for more than 30 years. He filed a cumulative trauma for orthopedic, hearing loss and cardiovascular injuries. The defendant accepted the hearing loss and heart injuries and denied the rest.

The case went to trial and the Workers’ Compensation Judge (WCJ) found injury to the orthopedics, hearing loss and heart. The parties stipulated at a later hearing to 64 per cent permanent disability for the cardiovascular injury and 45 per cent permanent disability for the orthopedic injuries. The WCJ ruled that the internal and orthopedic injuries were separate and issued two separate permanent disability awards. The WCJ reasoned that the cardiovascular injury was unrelated to physical work while the orthopedic was related to physical work. This justified separate permanent disability awards.

The applicant petitioned for reconsideration. The applicant contended there
was a prior decision that there was a determination of only one cumulative
trauma period. The applicant contended you only get a single combined award for orthopedic and cardiovascular injuries.

The Workers’ Compensation Appeals Board (WCAB) found there was only one cumulative trauma and the applicant was entitled to a combined award which would result in a life pension. Since there was a previous determination of the cumulative trauma period this could not be relitigated.


Lien Claimants liens are deemed satisfied with no further payment due for failing to follow required procedures

This is an order denying reconsideration case

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

The applicant was standing on a curb using a shovel. A car struck the shovel
which flew into his shoulder injuring his shoulder. The car came within a foot of hitting him. The applicant was taken to the hospital where he was in shock about the accident.

The defendant admitted the neck and left shoulder injury but denied the psychiatric claim. The applicant received psychiatric treatment. A psychiatrist diagnosed the applicant with post traumatic stress disorder and an adjustment disorder with depressed mood.

At trial the applicant testified to nightmares and paranoia with cars backing up. The Workers’ Compensation Judge (WCJ) found the psychiatric case compensable. The WCJ found that the psychiatric injury was a direct result of the work incident itself. The WCJ reasoned that Labor Code section 4660.1 (c ) (1) did not apply to the facts. This only applies when the psychiatric injury is a compensable consequence of the original injury.

The Workers’ Compensation Appeals Board (WCAB) reviewed on reconsideration. They reviewed the statute and the Wilson case. The panel concluded that there was substantial medical evidence that there was a compensable direct psychiatric injury. Therefore, 4660 did not apply.


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