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


Applicant is deemed one hundred percent disabled with no need for apportionment

This is a Board panel decision

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

The applicant suffered an injury to his head, neck, back, shoulders, circulatory system,and psyche as  aresult of an industrial motor vehicle accident.

The applicant saw multiple doctors including a primary care physician (PTP), neurological Qualified medical examiner (QME), and psychological Qualified medical examiner.

The psychological Qualified medical examiner apportioned 5 per cent to non industrial causes. A vocations expert testified the applicant was 100 per cent totally disabled.

The case went to trial. The  Workers” Compensation Judge (WCJ) found that the applicant was 100 percent disabled and there was no legal basis for apportionment. The WCJ declined to follow the apportionment found by the psychological qualified medical examiner.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) reviewed the report of the psychologist  They determined that the apportionment was not legal apportionment.

The psychologist did not explain how and why the apportionment contributed to his permanent disability.

Based on the opinions of the QME,  PTP and vocational expert the applicant was deemed to be 100 per cent disabled.

Valdes v. City of Torrance

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


If you file a DOR a petition for contribution is not required for contribution

This is an order denying a writ of review

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

Applicant filed a specific injury and a cumulative trauma. The first defendant covered the specific and part of the cumulative trauma.

Based on  an Agreed Medical Examiner (AME)  the date of the end of the cumulative trauma changed. The first defendant entered into a compromise and release for a cumulative trauma since the AME found no specific injury.

Eight days later the Workers’ Compensation Judge (WCJ) joined the second defendant on the cumulative trauma.

The first defendant filed a Declaration of Readiness to Proceed (DOR). The second defendant objected to the DOR “on contribution issues”. No petition for contribution was filed within one year.

The second defendant claimed to an arbitrator that the contribution issue was barred because no petition for contribution was filed within one year. The first defendant claimed estoppel indicating the second defendant knew of the contribution issue timely by way of DOR and emails. The arbitrator found the contribution issue timely.

The Court of Appeal in denying  the second defendant’s writ indicated that a DOR is satisfactory under Labor Code section 5500.5 and WCAB Rule 10510.  The DOR was deemed sufficient to institute proceedings.

Brotherhood Mut. Ins. V WCAB

 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 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


Newsletter Sign up

SUBSCRIBE to our
Workers Compensation Feed

Recent Newsletters

Categories

Archives