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


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


Apportionment of Independent Medical Examiner approved for prior overlapping disability

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

The applicant suffered a low back injury in November 2016.  At the first trial the Workers’ Compensation Judge (WCJ) ruled the Qualified Medical Examiner’s (QME) opinions were not substantial evidence and ordered an Independent Medical Examiner (IME).

The IME indicated the applicant had a 16 percent whole person impairment (WPI) and apportioned 25 percent of the applicant’s disability to a 2002 prior injury indicating it was “overlapping”.

At trial the WCJ indicated the IME’s opinion was substantial medical evidence and subtracted the prior WPI from the current WPI. The applicant petitioned for reconsideration contending the IME opinion was not substantial medical evidence.

The Workers’ Compensation Appeals Board (WCAB) indicated the IME reviewed extensive medical records and did not engage in surmise or speculation. The IME had a good idea what the applicant’s impairment rating was once he was stabilized from the 2002 injury.

The WCJ indicated that the correct way to subtract the apportionment of the prior injury was to take the prior standard and rate it out and then take the current standard and rate it out and subtract the prior rating. The WCAB agreed.


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


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


The Workers’ Compensation Appeals Board (WCAB) does not have to reveal the name of the Independent Medical Reviewer

This is an appellate decision

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

The applicant had a work related injury that resulted in several surgical procedures. The applicant saw a pain-management specialist who prescribed a pharmaceutical regimen. Five of the prescriptions were approved and four were denied.

The applicant appealed the decision through the Independent Medical Review (IMR) process. IMR organization approved one of the four prescriptions and rejected the other three.

The applicant appealed and a Workers” Compensation Judge (WCJ) reversed the IMR decision and sent it back to the organization for review by a different reviewer.

While it was up for second review the applicant asked the Board to reveal the identity of the first and second reviewer. Before the hearing, the second reviewer issued an opinion.

A hearing was held to reveal the names of the reviewers. The WCJ denied the request to reveal the names based on section 4610.6, subdivision (f). On petition for reconsideration the WCAB agreed with the WCJ and denied the request to reveal the names of the reviewers.

The appellate court reviewed the confidentiality provision of section 4610.6, subdivision (f). The confidentiality section ensures that reviewers are independent and unbiased. This section prevents the Board from revealing the names and does not violate due process.


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