This is a Workers’ Compensation Appeals Board (WCAB) Panel decision

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

The applicant claimed a cumulative trauma through May 2020. The applicant applied for benefits on March 23,2021. Defendant sent a delay notice on April 23, 2021.

Defendant indicated that in order to make a decision they needed a med-legal examination, prior medical  records, and applicant’s statement.

Applicant requested a chiropractic before defendant issued the denial notice.

An expedited hearing was held and the Workers’ Compensation Judge (WCJ) held that the panel QME list was invalid because it was obtained before the defendant denied the claim. Further the WCJ ruled there was no dispute while the claim was in delay.

Applicant petitioned for removal arguing the QME panel was valid.  The WCJ recommended removal be denied. The WCAB heard the case on removal.

The WCAB saw in defendant’s delay letter a need for a med-legal exam to determine the compensability of the claim. The Board rejected the WCJ opinion that there must be a dispute before applicant can initiate the QME process.  They indicated that a delay letter initiates the dispute because the claim is not accepted.  Waiting until a denial letter issued would be against public policy. The Board indicated the applicant properly obtained the QME.

Cervantes v. Classic Cosmetics, Inc

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


Apportionment of Independent Medical Examiner approved for prior overlapping disability

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

The applicant suffered a low back injury in November 2016.  At the first trial the Workers’ Compensation Judge (WCJ) ruled the Qualified Medical Examiner’s (QME) opinions were not substantial evidence and ordered an Independent Medical Examiner (IME).

The IME indicated the applicant had a 16 percent whole person impairment (WPI) and apportioned 25 percent of the applicant’s disability to a 2002 prior injury indicating it was “overlapping”.

At trial the WCJ indicated the IME’s opinion was substantial medical evidence and subtracted the prior WPI from the current WPI. The applicant petitioned for reconsideration contending the IME opinion was not substantial medical evidence.

The Workers’ Compensation Appeals Board (WCAB) indicated the IME reviewed extensive medical records and did not engage in surmise or speculation. The IME had a good idea what the applicant’s impairment rating was once he was stabilized from the 2002 injury.

The WCJ indicated that the correct way to subtract the apportionment of the prior injury was to take the prior standard and rate it out and then take the current standard and rate it out and subtract the prior rating. The WCAB agreed.


Workers’ Compensation Judge vacates a Compromise and Release based on a Zero-Dollar MSA

This is a Board Panel Decision

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

The applicant and the defendant negotiated a Compromise and Release (C&R). The applicant was unrepresented. The parties went to an Agreed Medical Examiner (AME). The AME concluded the applicant was malingering. He did state that the applicant’s work over many years contributed to his cumulative trauma to multiple body parts. He found the injury industrial.

The parties thought the AME found the case nonindustrial in negotiating the C&R. They concluded that Medicare had no interest in the settlement and did not submit a MSA to CMS for approval. The Workers’ Compensation Judge (WCJ) approved the C&R.

The applicant then received a request for reimbursement of medical expenses from CMS from his “nonexistent MSA”. The applicant then, unrepresented, petitioned for the C&R to be set aside on the grounds he mistakenly believed the zero-dollar MSA insulated him from having to pay his settlement to Medicare.

The WCJ set aside the C&R on mutual mistake of fact. The defendant petitioned for reconsideration because there was never any intention to submit the MSA to CMS.

The Board panel agreed with the WCJ. There was no “meeting of the minds” in the formation of the C&R because both parties mistakenly believed Medicare had no interest in the case, and that a zero dollar set aside would be appropriate.

Harrison v Canyon Springs
Pools and Spas Inc.
Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown


Fall from loading dock is a sudden an extraordinary event for Psychiatric purposes

This is an order denying reconsideration case

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

The applicant claimed an industrial injury to her tibia, humerus and psyche due to a fall.  The applicant did not work for the employer 6 months at the time of the injury.

The applicant was walking on a loading dock at work looking for the cafeteria when she fell on her second day of work. Defendant denies the applicant’s claim for psychiatric injury under Labor Code section 3208.3 (d) because she had not worked for the employer for 6 months.  The applicant went to a Psychiatric Qualified Medical Examiner who stated the applicant’s psychiatric injury was predominately industrial.

The case went to trial. The Workers’ Compensation Judge (WCJ) found the applicant’s psychiatric injury was a “sudden and extraordinary” event that was an exception to the six-months employment requirement under section 3208.3 (d).

The defendant petitioned for reconsideration contending that falls at work were common and “routine” and therefore, not a sudden and extraordinary event.

The majority of the Workers’ Compensation Appeals  Board (WCAB) panel in a split decision upheld the WCJ.  They cited Matea v. WCAB.  They ruled a fall from a loading dock was an unexpected risk. The applicant’s injury was not barred by 3208.3.


Permanent Total Disability reduced by prior award to same statutory body region

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


The applicant previously filed a claim for injury to upper digestive tract, a skin disorder, dietary restrictions, bruxism and TMJ for the cumulative trauma (CT) period of June 1980 to June 2015 and a specific of June 25, 2015 for his skin condition. The applicant received a permanent disability of 83 percent for these injuries.

The applicant then filed a ct for a period of June 1980 to February 2019 for colon cancer. The applicant was a firefighter battalion chief. The parties stipulated that the cancer was industrial pursuant to the firefighter presumption in Labor Code section 3212.1

The Workers’ Compensation Judge (WCJ) ruled that vocational evidence rebutted the rating schedule on disability and the applicant was 100 percent disabled.

The WCJ used the “catch all” provision of Labor Code 4664 (c) (1) (G) to calculate the prior award to be 34 percent for body parts that fall within that section. The WCJ then deducted the 34 percent for apportionment to give the applicant a 66 percent disability for the colon cancer injury.

The applicant filed a petition for reconsideration. The Board panel reviewed 4664 ( c) (1) (g) and case law. The Board approved the WCJ and indicated if apportionment was not allowed applicant would have received two life time pensions.

Russell v. County of Los Angeles


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


Injury from fall from chair after an Idiopathic Seizure is ruled compensable

This is a Board panel decision

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

The applicant was seated at work doing her job. She claimed a seizure caused her to fall from her chair causing compensable injury to her left shoulder, left arm and neck. She did not claim the seizure itself was compensable.

She had taken pain medication during her thirty minute lunch break. Twenty five minutes after her lunch break she fell injuring herself. There was no evidence she was intoxicated or that intoxication caused her injury. There were no toxicology reports.

The Workers’ Compensation Judge (WCJ) at trial ruled the seizure occurred at work.  The WCJ indicated that while the idiopathic injury could have occurred anywhere, it occurred at work. The WCJ followed the case of Gideon stating that the fact the seizure occurred at work made the parts of the body injured in the fall industrial.

The WCJ ruled that the applicant’s injury did not present a unique danger to prevent compensability.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) issued a Panel decision. They agreed with the WCJ in following the  Supreme Court  Gideon case. They concluded that if an employee sustains an injury from a fall on the employer’s premises in the course of employment that it is compensable, even if it was cause by an idiopathic seizure. Therefore, the injury was industrial.

Mass v. Hospital Bus. Services, Inc

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


Police officer’s cancer diagnosed 17 years after the last worked is ruled presumptively compensable

This is a Board Panel decision.

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

The applicant worked as a police officer from 1982 to 2001.  He received a disability retirement in 2003.

The applicant did not notice symptoms until 2018.  He was diagnosed with bladder cancer.  He filed an application alleging his employment as a police officer caused his cancer and asserted the cancer presumption under Labor Code section 3212.1.

The case went to trial. The Workers’ Compensation Judge (WCJ) noted that section 3212.1 indicated that the presumption only applied if it occurred within the last ten years the applicant actually worked. The applicant in this case had not worked during the last ten years. 

The applicant saw an Agreed Medical Examiner (AME) who indicated that the applicant’s cancer was nonindustrial but there was a latency period of 20 years.

The WCJ used the latency period to determine that the cancer would have developed in 1998, 20 years before being diagnosed.  Therefore, it was while he was employed and the presumption applied. The cancer was compensable.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) issued a Board panel decision. They reviewed the statute and case law. They determined that where substantial medical evidence established that the cancer began developing during employment, the presumption applies and the case is compensable.

Blair v. City of Torrance

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


Good faith payments in closed case are credited against a subsequent claim

This is a Board Panel Decision

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

The applicant had an injury to his right knee in 2001. The case was settled by Stipulation with Request for Award.  The applicant saw an Agreed Medical Examiner (AME) in 2009 who indicated the applicant had new and further disability.

The defendant made $23,000 in increased permanent disability payments based on this report. The applicant never reopened the case for new and further disability.

The applicant then filed a new claim for a cumulative trauma to the right knee through 2013. The same AME attributed permanent disability to the cumulative trauma.

The case went to trial.  The defendant raised the issue of credit for overpayment of permanent disability on the 2001 case.  They asserted they mistakenly believed the applicant would reopen that case and paid permanent disability.

The Workers’ Compensation Judge (WCJ) ruled that the defendant was not entitled to a credit for the overpayment. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board ruled that the defendant acted in good faith in advancing permanent disability payments for the 2001 injury. The defendant was given credit on the cumulative trauma because equity favors allowance of the credit. The WCJ was overturned.

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


Psychiatric injury is allowed for a violent injury authorized under section 4660.1 c.2.4

The applicant suffered an injury to her left index finger while closing a
heavy gate at school. The gate was big and heavy. Due to it being large
the applicant had to push and follow through. She injured her finger and
the tip of her finger needed to be amputated.

This caused her anxiety and fear that resulted in her filing a psychiatric
claim. She testified at trial about her increased emotions of anxiety and
fear.

The Workers Compensation Judge (WCJ) noted that the applicant has
the burden of proving by a preponderance of evidence the injury. With
respect to a violent act causing psychiatric injury the applicant only has
to demonstrate that the actual events of employment were a substantial
cause of the injury.

Here the WCJ ruled that the applicant sustained her burden of proving
that her psychiatric injury was predominantly caused by her physical injury.

It was also the result of a violent act. The WCJ noted that the force of
the gate closing was significant enough to cause a crush injury resulting
in amputation. This was enough to meet the definition of a violent act under section 3208.3 (b) (2).

On reconsideration by defendant the Workers” Compensation Appeals Board (WCAB) agreed with the WCJ


Telephonic trial did not violate defendant’s Due Process Rights or Governor’s Order

This is a Board Panel Decision

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

The applicant sustained an injury in a physical altercation. The defendant denied the claim contending the applicant was the “initial physical aggressor” and thus barred from recovery.

The case was tried after the Workers’ Compensation Appeals Board (WCAB) stopped conducting in person trials because of Covid-19 restrictions.

The case was to be tried by telephonic link.  The defendant objected claiming that the Workers’ Compensation Judge would not be able to give an adequate assessment of the witnesses’ testimony by a telephone call or video conferencing.  The WCJ denied the defendants request and the trial was held telephonically with video conferencing.

The WCJ issued a decision finding the claim compensable and finding the defendant was not the initial physical aggressor. This was after listening to all witnesses telephonically. The defendant filed a petition for reconsideration.

The WCAB indicated that due process only requires a hearing appropriate to the nature of the case. The need for a remote hearing was not base on whimsy. The need for a remote hearing was based on the advent of a global pandemic. Due process is based on the  circumstances as they find them. Here there was a global pandemic. Therefore,  the defendants’ s  due process rights were not violated.

Johanson v. San Ramon  Valley Unified School District

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


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