Applicant did not suffer a work related injury when he fell in a parking lot one block from work

This is a writ denied case

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

The applicant tripped and fell while walking after work from his place of employment to a parking lot one block away. The defendant denied the injury on the basis of AOE-COE raising the “Going and Coming’ rule. 

The employer did not provide parking for its employees. The supervisor gave suggestions as to different lots the employee could park. The lot the employee parked at was not on the employer’s premises. The employer did not own or control the parking lot.

The Workers’ Compensation Judge (WCJ) ruled the employee was not barred by the “going and coming” rule. The WCJ indicated the employer required the employees to park offsite and the employer benefitted from not having to provide parking for its employees. The WCJ indicated the employee was in the course of his employment while walking between his office and the parking lot.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) rescinded the WCJ decision in a split panel decision.

The WCAB ruled the was not a “special risk”. The WCAB ruled the applicant was subject to the same risks of walking between parking lot and the employers’ premises as any other pedestrian. They evaluated whether this was a “borderline case” and determined it was not. The injury was non industrial.


Applicant cannot receive temporary disability for time lost for treatment medical appointments after return to work

This is an appellate court decision

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

The applicant had two specific injuries. The applicant was found permanent and stationary for one injury but not the other. The applicant returned work.

The applicant then missed time from work for medical treatment appointments and for appointments with the Qualified Medical Examiner. The applicant used sick time and vacation time for the appointments.

At a hearing the applicant claimed she was entitled to temporary disability (td) payments for the time missed from work. The Workers’ Compensation Judge (WCJ) ruled under section 4600 (e)(1) that that the applicant was not entitled to td for an appointment for medical treatment. The WCJ did not rule on the QME time lost.

The applicant filed for reconsideration. The WCJ on the report and recommendation again indicated the applicant is not allowed td for medical treatment but indicated the applicant can get one day of td for the QME exam. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ. The appellate court reviewed Department of Rehabilitation v WCAB and determined the applicant is not entitled to temporary disability indemnity for missed time from work to attend appointments for medical treatment. The applicant is entitled to td for the missed time for a medical examination as opposed to treatment.

Case:Skelton v WCAB


Applicant convicted of attempted perjury for lying at deposition even though the transcript was never signed

This is an appellate court decision

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

The applicant claimed an ankle injury occurred on January 24, 2017 between 1 and 2 am. The applicant wrote a memo detailing the injury including the date and time. It was also reported to the supervisor and the insurance company as having occurred on that date at that time.

The employer had video evidence of that date and time and saved the footage. No evidence of an injury was visible in the video.

The applicant’s deposition was taken and the applicant testified to the injury occurring between 3 and 4 am. The applicant was asked if he previously reported the injury at 1 am and he testified he did not.

The parties stipulated that if the unsigned original transcript was not returned within 60 days, a certified copy could be used for all purposes. The applicant did not sign and return the transcript.

The applicant was referred for prosecution and charged with seven counts of insurance fraud and three counts of attempted perjury. The jury convicted the applicant of perjury but could not reach a verdict on all
other counts. The appellate court indicated that all elements of perjury were not met at trial but under People v Post, the crime of attempted perjury was met. Therefore, the applicant’s crime of attempted perjury was upheld on appeal.

Case: People v. Ibarra


Workers’ Compensation Appeals Board holds that you cannot claim credit for permanent disability advanced on wrong case

This is a Decision after reconsideration.

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

The applicant sustained a cumulative trauma to the cervical spine and lumbar spine.  The applicant also sustained a specific to the cervical spine.

The applicant was found to have a 28 percent permanent disability on the cumulative trauma. The applicant was found to have a 23 percent disability on the specific injury. The doctor had apportioned between the injuries.

The defendant made permanent disability advances of $36,000 on the specific injury. The defendant made no permanent disability advances on the cumulative trauma.

The case went to trial and the defendant claimed credit for overpayment of permanent disability advances on the specific injury. The defendant wanted those overpayments to be applied to the cumulative trauma.

The Workers’ Compensation Judge (WCJ) denied the credit indicating the defendant was not entitled to credit from one injury on to another. The defendant filed a petition for reconsideration contending that since it was a public entity this was an impermissible “gift” by a public entity.

The Workers’ Compensation Appeals Board  (WCAB) found no merit to this argument. The WCAB agreed with the WCJ that you can not take credit for permanent disability advances for a specific injury on a separate cumulative trauma injury.


Workers’ Compensation Appeals Board holds that a good faith personnel action is exempt from the 90 day limit

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

The applicant alleged a cumulative trauma to his psyche, brain, head and headaches. The parties stipulated that the defendant did not deny liability within 90 days pursuant to Labor Code section 5402 (b). The defendant contended that a good faith personnel action under Labor Code section 3208.3 (h) fell outside the scope of the 90 day limit pursuant to 5402 (b).

The Workers’ Compensation Judge (WCJ) ruled that the good faith personnel action was subject to 5402 (b) and could only be established by evidence that could have been obtained within 90 days of the filing.

Defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ decision. The WCAB looked at the language of both statutes.  It also reviewed the case of James v. WCAB. The Board determined that a good faith personnel defense obtained more than 90 days after the receipt of the claim form was permissible even if that evidence was obtainable with reasonable diligence within the 90 days of receipt of the claim form.

The Board looked at the language that indicated a higher threshold for compensability under Labor Code section 3208.3. This higher level of compensability applied not withstanding any other provisions of the code including the 90 day provision of Labor Code 5402 (b). Therefore, the 90 day was not applicable.


Workers’ Compensation Appeals Board rules doctrine of laches applies to deposition fees

This is a writ denied case

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

The applicant sustained an admitted injury.  The applicant’s deposition was taken on 2/8/2001 and 12/12/2001.  The case settled by way of Compromise and Release (C&R) in 2004. The language of the C&R indicated the defendants were to pay reasonable deposition fees within 20 days, and the balance subject to continuing jurisdiction.

The applicant first made a demand for deposition fees in 2005, four years after the depositions. Defendant first paid a deposition fee in 2010 and a second deposition fee in 2018.

The applicant attorney claimed deposition attorney fees in addition to what was paid and it went to hearing.  The applicant attorney also claimed penalties and sanctions.

The Workers’ Compensation Judge (WCJ) indicated deposition fees are discretionary, not mandatory. The WCJ noted that the request for deposition fees came four years after the first deposition, three and half years after the second deposition, and more than one year from the date of the C&R. Applicant’s attorney argued that the language of the C&R indicated the defendant must pay. The WCJ ruled that language was vague and ambiguous. The WCJ ruled that the inadequate and delayed request for attorney fees was prejudicial to defendant and barred by the doctrine of laches. On Petition for Reconsideration the WCAB agreed. No penalty was allowed.

Case: Shandler and Associates v WCAB


Workers’ Compensation Appeals Board rules applicant is permanently and totally disabled

This is a writ denied case

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

The applicant sustained an injury to her neck, lower back, right shoulder, psyche and headaches in 2007. The applicant was originally  awarded a 57 per cent permanent disability. The Workers’ Compensation Appeals Board (WCAB) rescinded the award on petition for reconsideration and returned the case to the trial level to develop the record pursuant to Oglivie. They wanted the record developed with vocational evidence of the applicant’s future earning capacity.

The parties agreed on a vocational expert. The vocational expert determined the applicant lost all earning capacity. The psychiatric Qualified Medical Examiner determined the applicant was unable to return to the open labor market based on a Global Assessment of Function test (GAF).

The Workers’ Compensation Judge (WCJ) determined the applicant had a 89% disability using the GAF in psychiatry. The WCJ combined this with a 27 % orthopedic disability and came up with an overall rating of 92% according to the AMA guides. However, based on vocational expert evidence there was substantial evidence to award the applicant 100 per cent, which the WCJ did.

The defendant filed a petition for reconsideration and the WCAB agreed with the WCJ. There was substantial evidence by the psychiatrist and vocational expert to award 100 per cent disability.

Case: International Capital Group v WCAB (Walter)


Workers’ Compensation Appeals Board rules on Special Risk Exception to Going and Coming rule

This is a writ denied case

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

The applicant claimed an injury in a head-on motor vehicle accident on the way home from work. The applicant was a nurse and claimed that he had to work a mandatory second shift and was injured on the way home. The employer said the shift was voluntary.

The Workers’ Compensation Judge (WCJ) ruled the injury was industrial and fell within the “special risk exception” to the “going and coming rule”. The Workers’ Compensation Appeals Board (WCAB) on petition for reconsideration rescinded the award and barred the claim. The WCAB reviewed General Ins. v WCAB (Chairez) and the two prong test. But for the employment, the applicant would not have been at the location where the injury occurred, and the risk was distinctive from that of the general public.

The WCAB decided the applicant was not exposed to any extraordinary risk in comparison to that of the general public. It was determined the applicant chose to work the second shift. It was not a requirement. The risks in his commute were no different than the general public.

It was determined his commute and motor vehicle accident fell within the “going and coming rule” and was not a compensable work injury.


Apportionment not granted when disability between two injuries cannot be separated

This is a writ denied case

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

The applicant had an admitted orthopedic, internal and psychiatric specific injury on 10/15/2002. The applicant also alleged a cumulative trauma from 10/15/2002 to 1/2/2003.

The applicant saw an Agreed Medical Examiners (AME) in orthopedics, internal medicine and psychiatry. All three provided opinions on apportionment between injuries.

At trial the Workers’ Compensation Judge (WCJ) awarded the applicant 39 percent permanent disability for the specific and 68 percent permanent disability for the cumulative trauma after apportionment between the injuries.

The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) granted reconsideration and submitted new rating instructions to the rater. The rater came up with a combined rating of 83 percent for the specific and the cumulative trauma. The WCAB rescinded the award and issued a joint award for 83 percent.

The WCAB reviewed Labor Code section 4663 and Benson v. WCAB. They determined apportionment must be based on causation, except when the contribution of separate injuries cannot be parceled out by an evaluating physician. Here the disability was inextricably intertwined. Therefore, a combined PD award issued of 83 percent.


Applicant was found to have three injuries and two separate periods of cumulative trauma

This is a writ denied case

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

In most cases the applicant has only one cumulative trauma. This case was different in that more than one cumulative trauma was found.

The applicant filed a cumulative trauma against an employer for the period of 1985 to 1995. The date of injury under Labor Code section 5412 was found to be in 1995, with Labor Code section 5500.5 going back one year from that date.

A specific injury was filed for 1993. Then a separate cumulative trauma was field against a different employer for 1996 to 2007. A date of injury was found under Labor Code section 5412 of 2006 when the applicant first missed time from work. Then 5500.5 was applied for the last year of employment.

At trial the Workers’ Compensation Judge (WCJ) found two separate cumulative traumas rather than a single cumulative trauma indicating defendants failed to raise the issue of a single cumulative trauma at trial.

The Workers’ Compensation Appeals Board (WCAB) affirmed the WCJ indicating the issue was not timely raised.

Additionally, they indicated that separate cumulative trauma injuries cannot be treated as a single cumulative trauma where there are separate periods of disability and separate periods of need for medical treatment.


Newsletter Sign up

SUBSCRIBE to our
Workers Compensation Feed

Recent Newsletters

Categories

Archives