Permanent Total Disability Award for a Combined Specific and Cumulative Trauma Claims Awarded

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

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

             The applicant fell from a ladder to the floor on April 12, 2012. She underwent a laminectomy in March of 2013 and returned to work shortly thereafter. She stopped working April 8, 2013.

Applicant filed a specific for the April 12th fall.  Applicant filed a cumulative trauma through April 8ty 2013. The applicant had a spinal cord stimulator which was later removed. The applicant became wheelchair bound.

The applicant was seen by an Agreed Medical Examiner. (AME) who determined the applicant had failed back syndrome. The AME determined the low back disability could not be apportioned between the two injuries.  He gave the applicant a 80 per cent whole person impairment but determined she was totally disabled from a medical standpoint.

At trial, the Worker’s Compensation Judge (WCJ) consolidated applicant’s specific and cumulative trauma cases. He awarded 100 percent disability without apportionment between injuries. Defendant filed a Petition for Reconsideration.

The Workers’ Compensation Appeals Board (WCAB) indicated the burden of apportionment is on defendant. The AME was unable to apportion between injuries because they were inextricably intertwined. Therefore, the award of 100 percent disability was approved.

Lee v MakeshopNcompany

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


Five year limit on New and Further Disability extended by need for Medical Treatment

This is a Board Panel decision

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

The applicant was injured May of 2012 to the low back. The applicant had a discectomy in 2013 and received a 17 percent permanent disability award in January of 2015.

Later that year the applicant complained of  radicular symptoms and filed a petition to reopen his claim for new and further disability. The applicant had an MRI and a orthopedic consult discussed the need for possible surgery.

The applicant put off the need for surgery because he was going to school. In May of 2018, more than 5 years after the date of injury, an AME determined the applicant had no new periods of temporary disability or any increase in permanent disability.

The applicant filed a Declaration of Readiness to Proceed in August 2019, and the claim was set for trial in October 2020. Before the trial date the applicant had been referred for surgery.

The Workers’ Compensation Judge (WCJ) determined the petition to reopen was timely and valid. The WCJ ruled the applicant had not sustained new and further disability within five years.

Applicant filed a Petition for Reconsideration. The Workers’ Compensation Appeals Board (WCAB)  overruled the WCJ indicating the need for additional surgery was sufficient to reopen the case.

Pascacio v Jacob Farm Services/Star Ins.

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


Nonmedical transportation request approved despite UR and IMR denied requests

This is an order denying reconsideration case

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

             The applicant had an accepted injury to her neck. Applicant’s primary treating physician determined that the applicant was not able to drive. The applicant relied on her father for rideshare services for her activities of daily living.

A vocational expert indicated the applicant could not drive herself anywhere. Applicant’s attorney made a request for transportation assistance by a secondary treater. The secondary treater indicated the applicant was unable to drive or take public transportation.

The Utilization Review did not address the transportation because it was not within the scope of UR. Applicant’s attorney filed an Independent Medical Review application and The Administrative Director denied the request because it was not transportation for a medical treatment to cure or relieve the injury.

An expedited hearing was held on the issue of transportation for activities of daily  living. The Workers’ Compensation Judge (WCJ) determined the applicant needed transportation for performance of assistance of daily living. Defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) indicated that transportation could be provided for nonmedical reasons for attending assisted daily living if there was substantial medical evidence to support it. They ruled there was here.

Onruang v UCLA

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


Commercial traveler rule and neutral risk doctrine applied in case involving carbon dioxide exposure

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

The applicant was on  a business trip. He rented a vehicle and put two boxes of frozen fish  on dry ice in in his trunk.

He was later found unconscious in his car and administered CPR. He died and was diagnosed with a catastrophic hypoxic event caused by carbon dioxide exposure. 

Defendant denied the claim and a  trial was held. Defendant indicated that the Qualified Medical Examiner only indicated that it was difficult to conclude that the exposure to carbon dioxide contributed to the injury. Therefore, the defendant indicated that this did not meet the medical probable standard for compensability.

The Workers’ Compensation Judge (WCJ) ruled the case arose out of and in the course of employment. The WCJ ruled that the carbon dioxide was a contributing cause. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) ruled that all reasonable doubts as to injury are resolved in favor of the employee.  Even if the medical evidence is insufficient, the claim could be found compensable under the neutral risk doctrine. This is where the employee dies under unexplained circumstances at the workplace. The WCAB also indicated the commercial traveler rule would apply because the applicant was on a business trip.

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


You must object to Qualified Medical Examiner report prior to it being served in order to get a replacement panel

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

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

The applicant suffered an injury to the right wrist and claimed injury to the right upper extremity on February 4, 2020.

There was a panel Qualified Medical Evaluation (QME) performed on January 14, 2021. The report was served on the parties on March 9, 2021.  The applicant attorney did not object to the report as not being timely reported prior to it being served. The applicant attorney objected to the QME on March 9,2021 and asked for a replacement QME. The defendant objected.

The parties proceeded to trial.  One of the issues was whether the applicant was entitled to a replacement QME due to the report not being submitted within 30 days after the evaluator had seen the applicant.

The Workers’ Compensation Judge (WCJ) ruled that the applicant was entitled to a replacement panel evaluation. The defendant filed a petition for removal and the Workers’ Compensation Appeals Board (WCAB) treated it as a petition for reconsideration.

The WCAB indicated that if the QME fails to issue a formal evaluation prior to the deadline a party may request a replacement panel. The request for replacement panel on the grounds of lateness must be prior to the date the report was served. The party may not wait until the adverse report is served before raising an irregularity that it was not served timely. Here the report was served so the objection was not timely.

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


Dashcam video was improperly excluded with no opportunity to authenticate

This is a Board Panel order granting removal

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

The applicant was a truck driver and claimed an injury arising out of and in the course of employment. He claimed he had an injury in a confrontation with police officers. The defendant wished to provide dashcam footage showing the applicant provoked police officers and was the “initial physical aggressor”.

The defendant listed the video in the preconference statement but did not list any authenticating witnesses to testify about chain of custody, equipment used, and whether the video was  edited.

A trial was held and the applicant objected to the admissibility of the video. The Workers’ Compensation Judge (WCJ) ruled the dashcam footage inadmissible due to lack of authentication.  The WCJ denied the defendant witness as to the authenticity of the video because the witness was not listed on the pre trial statement.

Defendant filed for removal on the basis other panel decisions had allowed the video based on authentication by applicant’s testimony and circumstantial evidence.

The Workers’ Compensation Appeals Board (WCAB) ruled that the WCAB is not bound by common law or statutory laws of evidence and procedure.  A percipient witness testimony that the video is authenticate is allowed.  Therefore, the WCJ was overruled.

Johnson v Lexmar Distributor

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


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