An injury resulting from a misdemeanor traffic stop is ruled non compensable

This is an order denying reconsideration case

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

The applicant alleged an injury during a traffic stop when officers pulled him from his vehicle and  threw him to the ground injuring his lumbar spine, both knees, wrists, and left ankle. The applicant was charged with five misdemeanor counts. The applicant pleaded guilty to two misdemeanor counts that carried both the potential for jail time and fines.

The case went to trial and the Worker’s Compensation Judge (WCJ) ruled the injuries non compensable due to the commission of a crime under Labor Code section 3600 (a)(8). The applicant filed a petition for reconsideration indicating the labor code section was only applicable to felonies and not misdemeanors.

The Workers’ Compensation Appeals Board (WCAB) reviewed 3600 (a)(8) and indicated that though the statute indicated felonies it also provided a bar for any crime punishable as specified in Penal Code section 17 (b). Section 17 (b) includes crimes punishable by a fine or imprisonment in a county jail.

The WCAB ruled the applicant pleaded guilty to such crimes even though misdemeanors. The applicant’s injuries were caused by the commission of a crime punishable by fine or imprisonment and therefore, were not compensable. The petition for reconsideration was denied and the applicant received nothing.

Johnson v/ Lexmar Distribution

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


Psychiatric injury is supported by substantial medical evidence and compensable on applicant’s unrebutted testimony

This is a Board Panel decision

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

              The applicant filed a psychiatric/stress claim covering a period of 2009 through February 12, 2020. The applicant claimed he was denied two promotions. He claimed he was being characterized as a racist at work. He indicated he had negative performance evaluations after having written a whistleblower letter.

The primary treating physician (PTP) determined that the applicant had a psychiatric injury based on four specific work events that caused 90 per cent of applicant’s psychiatric injury.

The Qualified Medical Examiner (QME) determined the applicant had not suffered a psychiatric injury.  The QME determined the applicant had a long-standing personality disorder which likely developed in adolescence.

At trial the Workers’ Compensation Judge (WCJ) rejected the QME report as not substantial medical evidence and relied on the PTP. The WCJ concluded the applicant’s testimony was objective evidence and it was credible and unrebutted by the defense.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB)  agreed with the WCJ that the defense failed to present evidence that their actions were lawful, nondiscriminatory, good faith personnel  actions. Therefore, the case was compensable.

Larson V. County of Los Angeles Department of Regional Planning

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


Psychiatric injury follows partial finger amputation justifying and enhanced permanent disability award

This a very significant case for workers’ compensation principles.

The applicant was a gardener who fell while using a hedge trimmer suffering injuries to his right middle and ring fingers resulting in partial amputations. 

The applicant saw multiple physicians including psychiatric and pain management.

At trial the parties stipulated that the applicant suffered injury to the right hand resulting in a 47 per cent permanent disability. Defendants contended the applicant had no psychiatric disability. The Workers’ Compensation Judge (WCJ) determined there was substantial medical evidence the applicant had a psychiatric disability and awarded a 70 percent disability based on a combination of physical and psychiatric impairments. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) ruled the defendant stipulated to injury therefore, stipulating to a direct injury not a result of a physical injury, but a psychiatric injury from the event itself.

The WCAB the indicated the injury fell under two exceptions to Labor Code 4660.1 (c). The partial amputation qualified as a “significant violent act” and also qualified as  a “catastrophic” injury because it was analogous to a loss of limb.

Therefore, the WCJ was correct in finding psychiatric injury and awarding 70 percent liability.

Bolivar v. Heredia

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


General and Special employers jointly and severally liable for compensation benefits

This is a Board Panel Decision

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

The applicant was a residential energy technician for Southern California Gas Company and a union regional officer for Utility Workers Union of America.

At the time of his injury the applicant was in a union vehicle driving to the union office to participate in a study for contract negotiations with the Gas company.

At trial,  The Workers’ Compensation Judge (WCJ) ruled the applicant was an employee of the gas company but not the union.

The Gas company filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) indicated that it is possible for a worker to have two employers for workers’ compensation purposes. If one employer lends an employee to another employer, the lending employer is known as the  “general employer”. The employer bowering the employee is the “special employer”.

In this case the WCAB determined the gas company was the general employer and the union was the special employer. They discussed the 9 factors to determine a special employer.

In this case they determined there was a “dual employment relationship”. They found the applicant was employed by both the gas company and the union on the date of injury and therefore, they were joint and severally liable.

Robles v. Southern Calif Gas Co.

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


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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