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

Dashcam video was improperly excluded with no opportunity to authenticate

This is a Board Panel order granting removal

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

The applicant was a truck driver and claimed an injury arising out of and in the course of employment. He claimed he had an injury in a confrontation with police officers. The defendant wished to provide dashcam footage showing the applicant provoked police officers and was the “initial physical aggressor”.

The defendant listed the video in the preconference statement but did not list any authenticating witnesses to testify about chain of custody, equipment used, and whether the video was  edited.

A trial was held and the applicant objected to the admissibility of the video. The Workers’ Compensation Judge (WCJ) ruled the dashcam footage inadmissible due to lack of authentication.  The WCJ denied the defendant witness as to the authenticity of the video because the witness was not listed on the pre trial statement.

Defendant filed for removal on the basis other panel decisions had allowed the video based on authentication by applicant’s testimony and circumstantial evidence.

The Workers’ Compensation Appeals Board (WCAB) ruled that the WCAB is not bound by common law or statutory laws of evidence and procedure.  A percipient witness testimony that the video is authenticate is allowed.  Therefore, the WCJ was overruled.

Johnson v Lexmar Distributor

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

Defendant requested in person testimony for trial denied due to Covid pandemic

This is a Petition for Removal

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

The applicant alleged a psychiatric injury. The case was tried on March 10, 2020.  The applicant gave both direct testimony and was cross examined.  The trial could not be finished in one day. The case was continued to June 9, 2020 for defense witnesses. In light of the Covid-19 pandemic the Workers’ Compensation Appeals Board (WCAB) stopped conducting in-person trials as of March 16,2020.

Before the June 9, 2020 date the applicant requested the case continue by remote testimony.  The defendant requested a continuance so in-person testimony could be elicited from three defense witnesses.

The Workers’ Compensation Judge (WCJ) continued the case set for September 1, 2020 stating that due process required in-person testimony of defense witnesses since applicant had previously given in-person testimony. The WCJ continued it to a time in the future when in-person testimony could be given.

Applicant filed a Petition for Removal. The WCAB indicated removal is an extraordinary remedy rarely used by the Appeals Board. However, they allowed here.

Next they turned to the issue of defendant’s due process.  They indicated due process is  a flexible concept.  Due  to the global pandemic the defendant’s due process rights were not violated.  The case could be remotely tried.

Gao v. Chevron

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

Workers’ Compensation Appeals Board holds that a good faith personnel action is exempt from the 90 day limit

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

The applicant alleged a cumulative trauma to his psyche, brain, head and headaches. The parties stipulated that the defendant did not deny liability within 90 days pursuant to Labor Code section 5402 (b). The defendant contended that a good faith personnel action under Labor Code section 3208.3 (h) fell outside the scope of the 90 day limit pursuant to 5402 (b).

The Workers’ Compensation Judge (WCJ) ruled that the good faith personnel action was subject to 5402 (b) and could only be established by evidence that could have been obtained within 90 days of the filing.

Defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ decision. The WCAB looked at the language of both statutes.  It also reviewed the case of James v. WCAB. The Board determined that a good faith personnel defense obtained more than 90 days after the receipt of the claim form was permissible even if that evidence was obtainable with reasonable diligence within the 90 days of receipt of the claim form.

The Board looked at the language that indicated a higher threshold for compensability under Labor Code section 3208.3. This higher level of compensability applied not withstanding any other provisions of the code including the 90 day provision of Labor Code 5402 (b). Therefore, the 90 day was not applicable.

Workers’ Compensation Appeals Board rules doctrine of laches applies to deposition fees

This is a writ denied case

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

The applicant sustained an admitted injury.  The applicant’s deposition was taken on 2/8/2001 and 12/12/2001.  The case settled by way of Compromise and Release (C&R) in 2004. The language of the C&R indicated the defendants were to pay reasonable deposition fees within 20 days, and the balance subject to continuing jurisdiction.

The applicant first made a demand for deposition fees in 2005, four years after the depositions. Defendant first paid a deposition fee in 2010 and a second deposition fee in 2018.

The applicant attorney claimed deposition attorney fees in addition to what was paid and it went to hearing.  The applicant attorney also claimed penalties and sanctions.

The Workers’ Compensation Judge (WCJ) indicated deposition fees are discretionary, not mandatory. The WCJ noted that the request for deposition fees came four years after the first deposition, three and half years after the second deposition, and more than one year from the date of the C&R. Applicant’s attorney argued that the language of the C&R indicated the defendant must pay. The WCJ ruled that language was vague and ambiguous. The WCJ ruled that the inadequate and delayed request for attorney fees was prejudicial to defendant and barred by the doctrine of laches. On Petition for Reconsideration the WCAB agreed. No penalty was allowed.

Case: Shandler and Associates v WCAB

Assisting a police officer in active law enforcement makes that person an employee for workers’ compensation purposes

This is a published appellate court decision

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

This case did not come out of workers’ compensation but resulted from a summary judgment in a civil case for negligence and misrepresentation.

A deputy sheriff phoned husband and wife citizens and asked them for assistance in a 911 call that was received by the sheriff. The deputy explained he was miles away and asked them to go check on a 911 call the sheriff had received from their neighbor.

The couple (who were not employed by the sheriff) went to check on their neighbor. They stumbled in on a double murder in progress and were both attacked by a knife and suffered severe wounds.

They filed a civil suit against the county and the county filed a summary judgment claiming the couple were employees and their only recourse was workers’ compensation. The court agreed.

The court looked at Labor Code section 3366 that indicates that any person engaged in assisting a police officer is deemed an employee of the public entity.

The court defines active law enforcement under the statute and determined the couple were in active law enforcement. They indicated they were exposing themselves to risks inherent in preventing a crime by responding to a 911 call. Therefore, their only remedy was workers’ compensation.

Court of appeal rules on the Statute of Limitations joining party 6 years after the injury

This is a Writ Denied case

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

The applicant became permanently and totally disabled while working for a licensed contractor on an apartment complex. The contractors workers’ compensation insurance had lapsed so he was uninsured on the date of the accident. The contractor later filed for bankruptcy.

The Uninsured Employers Benefits Trust Fund (UEBTF) was joined as defendant for the uninsured contractor.

Six years later the Workers’ Compensation Judge (WCJ) joined the property owner. The property owner raised the issue of statute of limitations and laches. The WCJ found the property owner to be the employer because the contractor was unlicensed and uninsured. The WCJ rejected the statute of limitations defense.

The Workers’ Compensation Appeals Board (WCAB) found that the statute of limitations had been tolled because the property owner failed to give the applicant notice of his rights to workers’ compensation.

The court of appeal reviewed the Business and Professional Code and the Labor Code. They reviewed case law and determined the statute of limitations was not tolled. After the applicant filed his claim there was no need for a claim form or notice of potential eligibility for benefits. The property owner had no legal duty to inform the applicant he was the employer for workers’ compensation benefits.

Court of Appeal reviews required vehicle exception to the going and coming rule

This is a published decision of the court of appeal

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

The applicant was an in-home caretaker for the department of Social Services. She was paid every two weeks for all work performed. She was not paid for transportation between locations.

On the date of injury she finished her first assignment and was riding her bike to the second assignment when she was involved in a car accident. The employer denied the claim.

The claim was heard on only the issues of employment and AOE-COE. The Workers’ Compensation Judge (WCJ) found the claim compensable because the required vehicle exception applied to the going and coming rule.

The Workers’ Compensation Appeals Board (WCAB) ruled the claim was barred by the going and coming rule.

When a writ was filed the WCAB filed a brief stating that they were incorrect and the required vehicle exception applied. However the employer still disputed this.

The appeals court gives one of the best summaries of this line of cases. They review Hinojosa but indicate this is directed to a commute between home and work. They then review cases where the employee is required to commute between job sites. They indicated that transiting between job sites was part and parcel of her job and therefore, compensable.

Applicant NFL player allowed to file a cumulative trauma and statute of limitations was tolled even though he had prior cases

This is a Writ Denied Case

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

This is a very unusual case for workers’ compensation purposes. Defendants rarely win a statute of limitations defense. This was a case where the defendant did not win even though applicant was represented in the past for specific injuries.

The applicant was a professional football player for the Miami Dolphins. He filed a cumulative trauma. Defendant never gave applicant notice of this workers’ compensation rights under the Reynold’s case.

The applicant did not learn of his right to file a cumulative trauma until he attended a retired players conference in 2010. He had been represented by attorney’s in previous specific injuries more than one year before he filed the cumulative trauma. He only had basic and general knowledge of his workers’ compensation rights.

The Workers’ Compensation Board (WCAB) determined that his earlier cases did not involve Labor Code section 5405. They indicated that no evidence was presented to show he had been informed of the statute of limitations in the earlier cases. The defendant did not show in the present case that the applicant had actual knowledge of the time limit for filing his workers compensation case more than one year before the claim at issue was filed. The WCAB indicated he needed actual knowledge and therefore the statute was tolled.

Workers’ Compensation Appeals Board decides what is a “violent act” for a psychiatric claim

This is a decision of The Workers Compensation Appeals Board

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

The applicant had an admitted injury to her neck, back and shoulders when she was struck by a car in a parking lot. She also alleged a psychiatric injury to this accident.

The defendant alleged that the psychiatric component of the injury is not compensable under Labor Code section 4660.1 (c). Defendant contended that being struck by a car is not a “violent act” which is necessary under the code for the psychiatric injury to be compensable. Defendant contended that a “violent act” has to be either criminal or quasi-criminal violence to be compensable.

The WCAB in this opinion and order denying petition for reconsideration reviewed Labor Code section 3208.3 as well as 4660.1 (c). The WCAB determined that being struck by a car was a “violent act” within the meaning of the statutes.

They concluded that for the purpose of Labor Code section 3208.3 a “violent act” is not limited to just a criminal or quasi-criminal act.

The definition of “violent act” may include acts of strong physical force, intense or extreme force, or are “vehemently or passionately threatening”.

Therefore, in this case the applicant was awarded a psychiatric injury in addition to the physical injuries.

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