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!


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.


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