Board En Banc decision on supplemental job displacement benefit voucher

This is a Board En Banc panel decision

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

The applicant sustained an admitted injury. The parties resolved the injury by way of Stipulations with Request for Award. The award did not include a Supplemental Job Displacement (SJDB) voucher.

Prior to the settlement the defendant sent a Notice of Offer of Regular, Modified or Alternative Work. The letter accompanying the notice indicated that the applicant must verify that he is qualified to accept employment as an inmate laborer. You have voluntarily terminated your employment due to your release from prison.

The applicant filed a Request for Dispute Resolution and asked for resolution of the SJDB. The Administrative Director did not issue a determination and therefore, it was denied by operation of law.

The case went to trial and the Workers Compensation Judge (WCJ) indicated the appeal was untimely an denied the SJDB. The applicant filed a petition for reconsideration and the Workers Compensation Appeals Board (WCAB) ruled the applicant was entitled to a voucher. Defendant appealed.

The WCAB ruled AD rule 10133.54 invalid. They also ruled an employer must show a bona fide offer of regular work to avoid liability for a SJDB. Here there was no bona fide offer.


Board En Banc decision on declared state of emergency on spread of corona virus

This is a Board En Banc panel decision

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

Normally this newsletter is dedicated to providing cases related to the litigation of workers’ compensation. The world has changed and the existing order of all things has changed dramatically.

Most of the readers are now working remotely and the whole business procedure has changed.

The way we operate in Workers compensation has dramatically changed as well. The Workers’ Compensation Appeals Board issued on En Banc decision on March 18, 2020 temporarily suspending specific rules of Practice an Procedure. The decision applies to the entire state.

Dismissal of an application or lien claim for failure to appear is suspended. Workers’ Compensation Judges (WCJ) and arbitrators shall have an unlimited extension of time to issue reports in response to petition for reconsideration or removal. You no longer need two witnesses on a Compromise and Release. Signatures may be done electronically.

Suspension of requirement of service by mail on the WCAB. Service may be electronic with or without parties’ consent.

District offices are closed for filing until April 3, 2020. All filings are extended to the next day when the district offices reopen for filing. You will need to monitor when the district offices reopen. It may well be extended past April 3, 2020.

Be safe!


Board panel rescinds Workers’ Compensation Judge (WCJ) decision finding separate and distinct injuries

This is a Board panel decision

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

The applicant worked for the employer for more than 30 years. He filed a cumulative trauma for orthopedic, hearing loss and cardiovascular injuries. The defendant accepted the hearing loss and heart injuries and denied the rest.

The case went to trial and the Workers’ Compensation Judge (WCJ) found injury to the orthopedics, hearing loss and heart. The parties stipulated at a later hearing to 64 per cent permanent disability for the cardiovascular injury and 45 per cent permanent disability for the orthopedic injuries. The WCJ ruled that the internal and orthopedic injuries were separate and issued two separate permanent disability awards. The WCJ reasoned that the cardiovascular injury was unrelated to physical work while the orthopedic was related to physical work. This justified separate permanent disability awards.

The applicant petitioned for reconsideration. The applicant contended there
was a prior decision that there was a determination of only one cumulative
trauma period. The applicant contended you only get a single combined award for orthopedic and cardiovascular injuries.

The Workers’ Compensation Appeals Board (WCAB) found there was only one cumulative trauma and the applicant was entitled to a combined award which would result in a life pension. Since there was a previous determination of the cumulative trauma period this could not be relitigated.


Workers’ Compensation Appeals Board must state the evidence relied on and the reasons for its decision

This is a published decision of the court of appeal

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

The applicant suffered a psychiatric injury. The Qualified Medical Examiner (QME) found the injury did not cause any permanent disability. The QME indicated he could not determine temporary disability. However, he indicated she could return to work with a reasonable accommodation. The employer refused to accommodate her work restriction.

The Workers’ Compensation Judge (WCJ) found no permanent disability and that the applicant failed to prove any period of temporary disability.

The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and denied the applicant’s petition for reconsideration. The applicant filed a writ with the court of appeal. The WCAB wrote a letter brief to the court of appeal indicating it made an error in the case and asked that its opinion be annulled and remanded.

The court of appeal recognized that the WCAB admitted that it did not review all available legal theories to the applicant. If the employer denied modified work then the applicant might be temporarily disabled.

Therefore, the original decision did not state the evidence relied on and the reasons for its decision. The WCAB did not review in sufficient detail refusal to provide modified worker so the case is remanded.


Worker’s Compensation Appeals Board (WCAB) must state evidence relied upon and reasons for its decision to be valid

This is an unpublished decision of the court of appeal

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

The applicant alleged an industrial cumulative trauma and specific injury. He claimed he contracted prostrate cancer. A Qualified Medical Examiner (QME) was chosen by the parties. The QME determined that cancer was not related to his employment.

The applicant hired a doctor at his own expense and forwarded the doctors report to the QME to write a supplemental report. The defendant objected and filed for a hearing claiming the applicant violated the discovery process.

A Workers’ Compensation Judge (WCJ) determined the report of the applicant doctor was not admissible but could be reviewed by the QME. The defendant filed a petition for reconsideration. The WCAB treated the petition as one for removal. The WCAB decided the report could not be reviewed by the QME. The applicant then petitioned for reconsideration or removal.

The WCAB denied both removal and reconsideration but failed to address section 4605 of the Labor Code.

The appellate court reviewed and indicated that the WCAB did not state the evidence in its opinion or the reasons for its decision as required in Labor Code section 5908.5.

The WCAB’s failure to give its reasoning in adequate detail was sufficient to annul its decision.


A panel qualified medical examiner is entitled to payment of the evaluation fee if there was no timely objection to a late report

This is a Writ Denied case

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

The applicant alleged an industrial cumulative trauma. The parties chose a panel qualified medical examiner in pain management. The doctor issued the report on the 38th day. The applicant objected to the report as untimely. Defendant did not object until later.

A replacement panel doctor was issued but the parties did not seek an evaluation from the replacement. The parties eventually settled the case based on the initial doctor’s reports. The defendants agreed to pay the doctor. After defendants failed to pay the doctor the doctor filed a petition with the Workers’ Compensation Appeals Board (WCAB).

The Workers’ Compensation Judge (WCJ) indicated the defendant was not liable for the payment because the report was untimely under Labor Code section 4062.5.

The WCAB noted that under section 139.2(j)(1) and 4062.5 an initial report must be prepared within 30 days of the evaluation which was not the case here. There was no question the report was late.

The WCAB indicated that the attorneys waived their right to the late reporting by failing to object at the earliest available opportunity. The failure to object at the first opportunity is a waiver of the issue. The only objection that was made was not timely either. An objection has to be made prior to the doctor serving the report. Therefore, the WCAB ruled the doctor had to be paid.


Objection to a medical report is not a final order that allows you to file a writ for review with the appellate court

This is a published case

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

The applicant had an admitted injury. The applicant was evaluated by a psychiatric agreed medical examiner (AME). The AME referred the applicant to a chronic pain specialist. The chronic pain specialist recommended the applicant have 24 hour 7 day a week in home care and sent the report to the AME. The AME incorporated this report in the AME report.

The defendant objected to the report of the chronic pain specialist and moved to strike the report of the AME. Defendant alleged that there was no agreement to send the chronic pain specialist report to the AME and that sending the report was an improper ex parte communication.

The Workers’ Compensation Judge (WCJ) denied a petition to strike the AME report. The defendant filed a petition to remove or in the alternative a petition for reconsideration with the Workers’ Compensation Appeals Board (WCAB).

The WCAB denied the petition for reconsideration indicating the WCJ denial to strike was not a final order. The defendant filed a writ of review.

The court of appeal indicated that it is well settled that writs of review only apply to final decisions, orders or award of the WCAB. The denial of the petition to strike in this instance was not a final order. Therefore, the Writ was denied.


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