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


Low Back not included in Compromise and Release so it was not settled

This is an opinion and decision after reconsideration

The applicant alleged injury to multiple body parts including the low back. The parties entered into a Compromise and Release but it did not include the low back as part of the settlement.

The case went to trial on whether the applicant could still claim the low back even though the rest of the body parts were settled by Compromise and Release. The Workers’ Compensation Judge (WCJ) ruled since the parties were aware of the claim for the low back it was not settled.

Defendant appealed. The applicant struck the language in the C&R that discharged defendant form liability for any claims not mentioned. The Workers’ Compensation Appeals Board ruled the low back claim was not settled and remanded the case.

Romero v. Berberian Enterprises
Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602


Defendant requested in person testimony for trial denied due to Covid pandemic

This is a Petition for Removal

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

The applicant alleged a psychiatric injury. The case was tried on March 10, 2020.  The applicant gave both direct testimony and was cross examined.  The trial could not be finished in one day. The case was continued to June 9, 2020 for defense witnesses. In light of the Covid-19 pandemic the Workers’ Compensation Appeals Board (WCAB) stopped conducting in-person trials as of March 16,2020.

Before the June 9, 2020 date the applicant requested the case continue by remote testimony.  The defendant requested a continuance so in-person testimony could be elicited from three defense witnesses.

The Workers’ Compensation Judge (WCJ) continued the case set for September 1, 2020 stating that due process required in-person testimony of defense witnesses since applicant had previously given in-person testimony. The WCJ continued it to a time in the future when in-person testimony could be given.

Applicant filed a Petition for Removal. The WCAB indicated removal is an extraordinary remedy rarely used by the Appeals Board. However, they allowed here.

Next they turned to the issue of defendant’s due process.  They indicated due process is  a flexible concept.  Due  to the global pandemic the defendant’s due process rights were not violated.  The case could be remotely tried.

Gao v. Chevron

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


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