Defendant denied right to cross-examine applicant is denied “due process of law”

This is a published appellate court case

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

The applicant had an admitted injury to the right ankle, right hand and back. These injuries were admitted. The applicant also alleged a psychiatric injury that was denied. There were multiple hearings before the Workers’ Compensation Judge (WCJ).

At the first hearing on whether the applicant was temporarily disabled the applicant admitted to working from time to time. The defendant’s cross-examination was terminated over the defendant’s objection. The defendant filed for reconsideration and the Workers’ Compensation Appeals Board (WCAB) denied reconsideration.

There were three more hearings and the applicant was eventually found permanently and totally disabled. The applicant refused to testify at all three of the hearings. The WCJ did not allow the defendant to cross- examine the applicant at each hearing. The defendant filed for reconsideration after each hearing indicating that it was “denied due process”. Each time the WCAB agreed with the WCJ.

The appellate court indicated that cross-examination is an element of a fair trial. The lack of cross-examination was prejudicial. Therefore, the WCAB decision was annulled.


A published decision of the appellate court on whether 4850 time covers a return to modified duty

This is a published court of Appeal case

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

The applicant was a deputy sheriff. The applicant had a work related injury. The applicant worked the night shift and was given an extra 5% for working the night shift. When the applicant returned to work the applicant was returned to modified duty by his physician. He was not allowed to work the night shift on modified duty. He was still given full salary but not the extra 5%.

The applicant filed for a hearing contending under Labor Code section 4850 he was entitled to the shift differential. A Workers’ Compensation Judge (WCJ) agreed with the applicant and awarded the applicant the extra 5%. On petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

The applicant contended before the appellate court that because he was on modified duty he was on a leave of absence from full duty and thus entitled to the extra 5%.

The appellate court determined that because the applicant was back at work he was not on a leave of absence and therefore, not entitled to 4850 time. Thus, there was no 4850 time while on modified duty.


A published decision of the Court of Appeal addresses Almaraz/Guzman-II issue of rating with no objective findings

This is a published court of Appeal case

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

The applicant was a police officer. He injured his left foot and heel. This was an admitted injury. He was diagnosed with plantar fasciitis.

An Agreed Medical Examiner (AME) wrote a report offering no impairment under the AMA Guides. In a supplemental report the doctor gave a 7 percent impairment using Almaraz-Guzman-II, because other than tenderness, no objective findings were identifiable.

At trial the Workers’ Compensation Judge (WCJ) found no impairment because the condition was not “ complex or extraordinary”. On petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) reversed indicating that the doctor by analogy provided an accurate assessment which met the requirements of Almaraz/Guzman-II.

The appellate court reviewed Almaraz/Guzman-II and indicated that even though the plantar fasciitis was only manifested by subjective experiences of pain a 7 percent permanent disability was warranted. This was equivalent to an analogy of a limp with arthritis.


A non published Court of Appeal case has indicated a professional athlete is not entitled to benefits in California

The applicant was a professional basketball player in the Women’s National Basketball Association (WNBA). The applicant did not reside in California during her career in professional basketball.

She played one game in California on July 20, 2003.

She did not have a specific injury on that date. She filed a cumulative trauma for her multiple basketball injuries with the Workers’ Compensation Appeals Board (WCAB).

A Workers’ Compensation Judge (WCJ) awarded disability benefits and the defendant filed a petition for reconsideration. The WCAB rescinded the award and returned it to the WCJ for apportionment purposes. The defendant filed a writ with the Court of Appeals.

The Court of Appeal issued this decision even though there was no final decision or order from the WCAB.

The appellate court indicated California does not have sufficient interest to apply its workers’ compensation law or to retain jurisdiction over the case. As a matter of due process, California has no obligation to the applicant.


In a panel decision the WCAB determined that a minor is entitled to the death benefit

The applicant was the minor son of a father who died in a work related motor vehicle accident. His mother was a total dependent. There was a minor daughter of a previous marriage.

A workers’ Compensation Judge (WCJ) found the minor son to be a total dependent and awarded him one third of the death benefit. The minor daughter of the previous marriage appealed contending she was entitled to the entire death benefit for minor children. The issue was that the minor son was excluded because his mother was a totally dependent spouse.

The panel decision was split with a dissenting opinion. The majority analyzed Labor Code sections 4703.5 and 3501. They also looked at legislative history and determined that there was nothing intended to deny the special benefit to a totally dependent child who lives with his totally dependent mother. Therefore, the minor son was entitled to the special death benefit.

The dissent would have excluded the minor son based on the statutes.


In an en banc decision the WCAB determined they do not have jurisdiction over an Arizona football player

This is an En Banc decision of the Workers’ Compensation Appeals Board (WCAB)

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

The applicant suffered a cumulative trauma injury during four years as a football player with the Arizona Cardinals. He played in 80 games of which 40 were in Arizona. The other 40 games were in 16 different states, whereof 7 games were in California.

The applicant filed an application for adjudication in California. His contract of employment indicated that his principal place of employment was in Arizona and that claims for workers’ compensation shall be filed in Arizona.

The Workers’ Compensation Judge (WCJ) indicated that the WCAB does not have to exercise jurisdiction over the applicant’s case and issued a “take nothing”. Applicant petitioned for reconsideration.

The WCAB determined that it has jurisdiction to decide if California is the proper forum to decide applicant’s claim. The WCAB agreed with the WCJ that California was not the proper forum. Arizona has a materially greater interest in determining workers’ compensation benefits for an Arizona resident.


Public safety officers are only entitled to 104 weeks of temporary disability and not an additional year of 4850 time

This is a published decision of the appellate court
This is a very significant case for workers’ compensation principles.

The applicant suffered a compensable injury to his knee while working as a Deputy Sheriff. The applicant collected 4850 for one year after the injury. The applicant then collected “regular” temporary disability (TD) benefits for another year. The county then ceased to pay temporary disability benefits even though doctors still had the applicant temporarily disabled.

At a hearing the Workers’ Compensation Judge (WCJ) gave the applicant 4850 time plus two years of TD. The defendant filed a Petition For Reconsideration and the Workers’ Compensation Appeals Board (WCAB) denied the petition.

The appellate court reviewed the legislation and case law. The term they looked at was “aggregate temporary disability”. The court determined that the legislature expressed its intent in Labor Code section 4656 (c) (2) that 4850 time must count toward the 104 week limit of collecting temporary disability.

There was a compelling policy argument that this will save public entities tens of millions of dollars per year.


Payment of temporary disability for compensable consequence claimed may not be allowed

This is an Opinion and Order Granting Reconsideration

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

The applicant suffered a compensable injury to his hands and wrists. The applicant then received temporary disability benefits.

The applicant suffered a separate injury to his right shoulder. The Worker’s Compensation Judge (WCJ) found the right shoulder to be a separate injury and awarded a separate 104 weeks of temporary disability.

Defendant filed a petition for reconsideration alleging that the second injury was a compensable consequence of the first injury and therefore, there should be no second 104 weeks of 104 weeks of temporary disability.

The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ citing Easterman v. Bradley Friedman, M.D., Travelers Insurance Company and Gee v. WCAB. The applicant is not entitled to a separate 104 weeks of temporary disability for a compensable consequence. The WCAB rescinded the Order of the WCJ and substituted its own Order in the place of the WCJ Order.

The applicant was only allowed one 104 week period of temporary disability. This case was defended by Samuelsen, Gonzalez, Valenzuela & Brown.


The Court of Appeal Issued a Published Decision in the Ogilvie Case

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant was injured in 2004. The applicant underwent knee replacement surgery in 2006. A physician recommended spinal surgery which applicant declined. The applicant never returned to work.

At trial the applicant rebutted the rating of the schedule on the basis of diminished future earning capacity. The applicant used a vocational rehabilitation expert. The Workers’ Compensation Judge (WCJ) agreed with the applicant and devised an alternative way to calculate applicants disability at a higher rate than the schedule.

The Workers’ Compensation Appeals Board (WCAB) in an en banc decision indicated that the applicant could rebut the schedule and created a new methodology to rebut the schedule.

The appellate court concluded that an employee may challenge the presumptive schedule of permanent disability by showing a factual error in the calculation of a factor in the rating formula or application of the formula, or by showing that the applicant is not amenable to rehabilitation and therefore has a greater disability than is shown in the rating schedule. The applicant can show the rating was incorrectly applied or the rating inadequate in light of the industrial injury. The case was reversed.

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602

Newport Beach, ca 92662

Phone: 949 252-1300


The Court of Appeal Issued a Non Published Decision on the Issue Which Rating Schedule to Use

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant filed a cumulative trauma as a hockey player for the San Jose Sharks from 1997 to 2002. The applicant testified to numerous specific injuries and was on the employers injured reserve list almost every year. He was paid salary continuation.

The case was tried by a Workers’ Compensation Judge (WCJ) and the applicant was found 100 per cent disabled. The WCJ found the 1997 permanent disability schedule applied because the case fell within one of the three exceptions to Labor Code section 4660 (d).

The employer petitioned for reconsideration and the Workers’ Compensation Appeals Board reversed and found the 2005 rating schedule for rating permanent disabilities applied.

The appellate court reversed and indicated that the 1997 schedule applied because the applicant received salary continuation, which triggered the need for the employer to give notice under Labor Code section 4061. The employer’s failure to do so triggered the exception under Labor Code section 4660 (d)

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Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602

Newport Beach, ca 92662

Phone: 949 252-1300


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