Psychiatric injury follows partial finger amputation justifying and enhanced permanent disability award

This a very significant case for workers’ compensation principles.

The applicant was a gardener who fell while using a hedge trimmer suffering injuries to his right middle and ring fingers resulting in partial amputations. 

The applicant saw multiple physicians including psychiatric and pain management.

At trial the parties stipulated that the applicant suffered injury to the right hand resulting in a 47 per cent permanent disability. Defendants contended the applicant had no psychiatric disability. The Workers’ Compensation Judge (WCJ) determined there was substantial medical evidence the applicant had a psychiatric disability and awarded a 70 percent disability based on a combination of physical and psychiatric impairments. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) ruled the defendant stipulated to injury therefore, stipulating to a direct injury not a result of a physical injury, but a psychiatric injury from the event itself.

The WCAB the indicated the injury fell under two exceptions to Labor Code 4660.1 (c). The partial amputation qualified as a “significant violent act” and also qualified as  a “catastrophic” injury because it was analogous to a loss of limb.

Therefore, the WCJ was correct in finding psychiatric injury and awarding 70 percent liability.

Bolivar v. Heredia

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


Permanent Total Disability Award for a Combined Specific and Cumulative Trauma Claims Awarded

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

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

             The applicant fell from a ladder to the floor on April 12, 2012. She underwent a laminectomy in March of 2013 and returned to work shortly thereafter. She stopped working April 8, 2013.

Applicant filed a specific for the April 12th fall.  Applicant filed a cumulative trauma through April 8ty 2013. The applicant had a spinal cord stimulator which was later removed. The applicant became wheelchair bound.

The applicant was seen by an Agreed Medical Examiner. (AME) who determined the applicant had failed back syndrome. The AME determined the low back disability could not be apportioned between the two injuries.  He gave the applicant a 80 per cent whole person impairment but determined she was totally disabled from a medical standpoint.

At trial, the Worker’s Compensation Judge (WCJ) consolidated applicant’s specific and cumulative trauma cases. He awarded 100 percent disability without apportionment between injuries. Defendant filed a Petition for Reconsideration.

The Workers’ Compensation Appeals Board (WCAB) indicated the burden of apportionment is on defendant. The AME was unable to apportion between injuries because they were inextricably intertwined. Therefore, the award of 100 percent disability was approved.

Lee v MakeshopNcompany

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


Five year limit on New and Further Disability extended by need for Medical Treatment

This is a Board Panel decision

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

The applicant was injured May of 2012 to the low back. The applicant had a discectomy in 2013 and received a 17 percent permanent disability award in January of 2015.

Later that year the applicant complained of  radicular symptoms and filed a petition to reopen his claim for new and further disability. The applicant had an MRI and a orthopedic consult discussed the need for possible surgery.

The applicant put off the need for surgery because he was going to school. In May of 2018, more than 5 years after the date of injury, an AME determined the applicant had no new periods of temporary disability or any increase in permanent disability.

The applicant filed a Declaration of Readiness to Proceed in August 2019, and the claim was set for trial in October 2020. Before the trial date the applicant had been referred for surgery.

The Workers’ Compensation Judge (WCJ) determined the petition to reopen was timely and valid. The WCJ ruled the applicant had not sustained new and further disability within five years.

Applicant filed a Petition for Reconsideration. The Workers’ Compensation Appeals Board (WCAB)  overruled the WCJ indicating the need for additional surgery was sufficient to reopen the case.

Pascacio v Jacob Farm Services/Star Ins.

 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


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


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


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.


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.


Court of Appeal rules there is no apportionment for disability resulting from medical treatment

This is a published decision of the court of appeal

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

The applicant did many years of clerical work for Costco. The applicant took a leave to undergo carpal tunnel surgery. She filed a claim and this was an admitted injury. Following surgery, she developed chronic regional pain syndrome (CRPS).

The Agreed Medical Examiner (AME) found the applicant permanent and totally disabled. He apportioned 90% industrial and 10% nonindustrial.

The Workers’ Compensation Judge (WCJ) awarded the applicant 90% permanent disability. The applicant filed for reconsideration. The Workers’ Compensation Appeals Board after a remand increased disability but still allowed apportionment. A writ was filed.

The court of appeal dealt with timeliness of appeal and allowed the appeal. The court reviewed sections 4663 and 4664. The court indicated that the issue is whether an employer is liable for both the medical treatment and any disability arising directly from an unsuccessful medical treatment, without apportionment. They reviewed the statutes and Granado and Dueville. Here there was no dispute that the applicant had disabling carpal tunnel. The surgery went badly resulting in CRPS.

They indicated that the employer is thus responsible for the treatment with no apportionment. HB


Court of Appeal indicates that you can apportion to heredity and genetics

This is a published decision of the court of appeal

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

The applicant was a police officer. He suffered an admitted cumulative trauma to his neck. He underwent neck surgery. The Qualified Medical Examiner (QME) indicated the applicant had cervical radiculopathy and cervical degenerative disc disease. The QME apportioned disability.

The QME referred to specific publications that indicate causation can be to genomics/genetics/heritable issues in terms on injury. The QME apportioned 49 percent to nonindustrial causation.

The Workers’ Compensation Judge (WCJ) determined that the apportionment was legal to genetic factors. The applicant petitioned for reconsideration. The Workers’ Compensation Appeals Board (WCAB) overruled the WCJ indicating that apportioning to genetics factors opens the door to apportioning to impermissible immutable factors.

The Court of Appeal disagreed in a great review of apportionment law. It indicated Zemke was superseded by Senate Bill 899. It then reviewed multiple cases including Escobedo. It reviewed section 4663. It reviewed what is substantial medical evidence. It indicated that the QME report found cervical radiculopathy and degenerative disc disease. It apportioned 49 percent to heredity, genomics, and other personal history factors. This was legal proper apportionment.


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