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


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


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

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

The applicant claimed a cumulative trauma through May 2020. The applicant applied for benefits on March 23,2021. Defendant sent a delay notice on April 23, 2021.

Defendant indicated that in order to make a decision they needed a med-legal examination, prior medical  records, and applicant’s statement.

Applicant requested a chiropractic before defendant issued the denial notice.

An expedited hearing was held and the Workers’ Compensation Judge (WCJ) held that the panel QME list was invalid because it was obtained before the defendant denied the claim. Further the WCJ ruled there was no dispute while the claim was in delay.

Applicant petitioned for removal arguing the QME panel was valid.  The WCJ recommended removal be denied. The WCAB heard the case on removal.

The WCAB saw in defendant’s delay letter a need for a med-legal exam to determine the compensability of the claim. The Board rejected the WCJ opinion that there must be a dispute before applicant can initiate the QME process.  They indicated that a delay letter initiates the dispute because the claim is not accepted.  Waiting until a denial letter issued would be against public policy. The Board indicated the applicant properly obtained the QME.

Cervantes v. Classic Cosmetics, Inc

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


Workers’ Compensation Judge vacates a Compromise and Release based on a Zero-Dollar MSA

This is a Board Panel Decision

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

The applicant and the defendant negotiated a Compromise and Release (C&R). The applicant was unrepresented. The parties went to an Agreed Medical Examiner (AME). The AME concluded the applicant was malingering. He did state that the applicant’s work over many years contributed to his cumulative trauma to multiple body parts. He found the injury industrial.

The parties thought the AME found the case nonindustrial in negotiating the C&R. They concluded that Medicare had no interest in the settlement and did not submit a MSA to CMS for approval. The Workers’ Compensation Judge (WCJ) approved the C&R.

The applicant then received a request for reimbursement of medical expenses from CMS from his “nonexistent MSA”. The applicant then, unrepresented, petitioned for the C&R to be set aside on the grounds he mistakenly believed the zero-dollar MSA insulated him from having to pay his settlement to Medicare.

The WCJ set aside the C&R on mutual mistake of fact. The defendant petitioned for reconsideration because there was never any intention to submit the MSA to CMS.

The Board panel agreed with the WCJ. There was no “meeting of the minds” in the formation of the C&R because both parties mistakenly believed Medicare had no interest in the case, and that a zero dollar set aside would be appropriate.

Harrison v Canyon Springs
Pools and Spas Inc.
Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown


Fall from loading dock is a sudden an extraordinary event for Psychiatric purposes

This is an order denying reconsideration case

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

The applicant claimed an industrial injury to her tibia, humerus and psyche due to a fall.  The applicant did not work for the employer 6 months at the time of the injury.

The applicant was walking on a loading dock at work looking for the cafeteria when she fell on her second day of work. Defendant denies the applicant’s claim for psychiatric injury under Labor Code section 3208.3 (d) because she had not worked for the employer for 6 months.  The applicant went to a Psychiatric Qualified Medical Examiner who stated the applicant’s psychiatric injury was predominately industrial.

The case went to trial. The Workers’ Compensation Judge (WCJ) found the applicant’s psychiatric injury was a “sudden and extraordinary” event that was an exception to the six-months employment requirement under section 3208.3 (d).

The defendant petitioned for reconsideration contending that falls at work were common and “routine” and therefore, not a sudden and extraordinary event.

The majority of the Workers’ Compensation Appeals  Board (WCAB) panel in a split decision upheld the WCJ.  They cited Matea v. WCAB.  They ruled a fall from a loading dock was an unexpected risk. The applicant’s injury was not barred by 3208.3.


Injury from fall from chair after an Idiopathic Seizure is ruled compensable

This is a Board panel decision

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

The applicant was seated at work doing her job. She claimed a seizure caused her to fall from her chair causing compensable injury to her left shoulder, left arm and neck. She did not claim the seizure itself was compensable.

She had taken pain medication during her thirty minute lunch break. Twenty five minutes after her lunch break she fell injuring herself. There was no evidence she was intoxicated or that intoxication caused her injury. There were no toxicology reports.

The Workers’ Compensation Judge (WCJ) at trial ruled the seizure occurred at work.  The WCJ indicated that while the idiopathic injury could have occurred anywhere, it occurred at work. The WCJ followed the case of Gideon stating that the fact the seizure occurred at work made the parts of the body injured in the fall industrial.

The WCJ ruled that the applicant’s injury did not present a unique danger to prevent compensability.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) issued a Panel decision. They agreed with the WCJ in following the  Supreme Court  Gideon case. They concluded that if an employee sustains an injury from a fall on the employer’s premises in the course of employment that it is compensable, even if it was cause by an idiopathic seizure. Therefore, the injury was industrial.

Mass v. Hospital Bus. Services, Inc

 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


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


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 .


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