Low Back not included in Compromise and Release so it was not settled

This is an opinion and decision after reconsideration

The applicant alleged injury to multiple body parts including the low back. The parties entered into a Compromise and Release but it did not include the low back as part of the settlement.

The case went to trial on whether the applicant could still claim the low back even though the rest of the body parts were settled by Compromise and Release. The Workers’ Compensation Judge (WCJ) ruled since the parties were aware of the claim for the low back it was not settled.

Defendant appealed. The applicant struck the language in the C&R that discharged defendant form liability for any claims not mentioned. The Workers’ Compensation Appeals Board ruled the low back claim was not settled and remanded the case.

Romero v. Berberian Enterprises
Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602

Court of Appeal rules on statute of limitations and labor code section 5500.5 against defendant

This is a published decision of the court of appeal

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

The applicant was a deputy county sheriff from 1998 to 2010. He took a service retirement. He thereafter worked for a federally recognized Indian tribe from 2010 to 2014.

He filed an application for a continuous trauma in 2014 for his employment which included that from 1998 to 2010. He first learned that his cumulative trauma was industrially related in 2013. The matter went to trial.

The Workers’ Compensation Judge (WCJ) ruled that 2014 was the last year of employment even if it was with a federally recognized Indian tribe under L.C. 5500.5. A petition for reconsideration was filed.

The Workers’ Compensation Appeals Board (WCAB) found that the statute of limitations did not apply since the applicant did not confirm his medical condition was industrially related until 2013. In addition, they found 5500.5 did not apply to the federally recognized tribe, so the prior employment was responsible.

On appeal, the appeals court looked at Labor code sections 5405 and 5412. The date of injury is when the applicant suffered disability and either knew or should have known that his disability was industrially related. In this case, he filed timely.

The appeals court ruled that 5500.5 only applies to the last year of coverage. Since the federal employment was not covered, the 1998 to 2010 employment was liable.

A Non Published Court of Appeal Case has reversed a finding of serious and wilful misconduct by the employer

The applicant was injured while working for a temporary agency at a job site assigned by the agency. The applicant was operating a table saw that was unsteady and lacked a guard over the blade. The applicant filed a Serious and Wilful claim against both the temporary agency and the site the applicant was working at when he was injured.

The applicant reported problems to the temporary agency at the working site prior to his injury. Cal-OSHA cited the site the applicant worked at for the table saw.

At trial the Workers’ Compensation Judge (WCJ) found the temporary agency committed Serious and Wilful Misconduct. The Workers’ Compensation Appeals Board (WCAB) affirmed the decision.

The appellate court indicated that there would be joint and several liability because the employers were exercising joint control.

Here they found there was no liability because there was no actual knowledge that serious injury was probable. In this instance they found it was negligence at best, which is insufficient to make a finding of a Serious and Wilful misconduct.

A published Court of Appeal case has really extended the concept of the going and coming rule without addressing it

The employee left the office at the end of the work day and began driving in the direction of home. She decided on the way to stop for a frozen yogurt and take a yoga class. She deviated from her home direction and made a left turn into the yogurt shop. She ran into a motorcycle injuring the driver. The driver brought an action against her and her employer. The trial court granted summary judgment releasing the employer from liability. The appellate court reversed.

The appellate court indicated the employer required the employee to use her personal vehicle to travel to and from the office and make other work-related trips throughout the day. They indicated that the planned stops for frozen yogurt and a yoga class did not change the incidental benefit to the employer of the employee using her personal vehicle to travel to and from the office and other destinations. The planned stops did not constitute an unforeseen, substantial departure from the employee’s commute. They indicated this was a foreseeable, minor deviation. Finally, the planned stops were not so unusual that it would be unfair to include the resulting loss among the other costs of the employers doing business.

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.


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 of Good Cause to Reopen Under Labor Code 5803

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

The applicant was injured in 2002. In 2006 the parties entered into a Stipulation with Request for Award for 35 percent permanent disability.

In 2007 the applicant filed a timely Petition to Reopen for New and Further Disability. An Agreed Medical Examiner (AME) determined the condition was non industrial and did not know what the original 35 percent was based on. The AME did indicate the applicant was still permanently disabled, as he was at the time of the original stipulation.

The defendant filed a Petition to Reopen to Reduce the award in 2008. The appellate court ruled that Labor Code section 5803 establishes a five-year statute of limitation and the WCAB had no jurisdiction to lower the award.

The court indicated that you can not rescind a stipulation after the five year period.

Te appellate court also indicated that to support an additional award there must be further disability. In this case there was no further disability because the applicant’s condition did not change since the original award.


Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602

Newport Beach, ca 92662

Phone: 949 252-1300

En Banc Decision of the WCAB on Surgery Center Billing

The WCAB evaluated a case on surgery center billing charges.

The surgery center in this case filed a lien for $31,007. The lien went to trial because the defendant disputed the charges. The Workers’ Compensation Judge (WCJ) allowed the full amount of the lien. The WCJ indicated the defendant did not raise the reasonableness and necessity of treatment in the Stipulations and Issues framed at the trial.

The WCJ indicated in the opinion that even if the defendant would have raised the reasonableness issue, the defendant did not meet the burden of proving the lien was unreasonable. The defendant filed a petition for reconsideration which resulted in this en banc decision.

The WCAB referred to a previous en banc decision in Kunz v. Patterson Floor Covering. They also cited another case for the proposition that the burden of proof lies with party or lien claimant holding the affirmative on the issue. In this case, the surgery center. The WCAB indicated that the defendant does not have the burden to show that the surgery center bill was unreasonable.

The WCAB indicated they believed the WCJ misinterpreted their holding in Kunz.

It appears that the WCAB is stating that a surgery center bill has to be reasonable on its face. It wont be presumed reasonable as several in the industry had contended. It must be reasonable on its face even if the defendant doesn’t challenge it. In this case the defendant never even raised the reasonableness at trial level and it was still sent back to the WCJ for evaluation of the bills reasonableness. Therefore, even though there may have been no defense the defendant prevailed.

En Banc Decision On Apportionment Dealing With Compromise And Release

The applicant filed a claim alleging two claims for injury. The first was in December 2001. It was an injury to the back. It was admitted. The second injury was admitted, and occurred on August 2, 2002. It also was to the back.

On May 9, 1998 the applicant had a back injury. This injury resulted in the applicant having a lateral microdiscectomy. The applicant was rehabilitated. The case settled by compromise and Release in September 1999.

The applicant had a pre- employment physical that he passed, prior to the current injuries.

The case was tried by a Workers’ Compensation Judge (WCJ) who found for the 2001 and 2002 cases the applicant was not entitled to anything. The WCJ reasoned the applicant had a prior disability of no heavy work for the 1998 injury and the same restriction for the 2001 and 2002 injuries. Applicant petitioned for reconsideration. The Workers’ Compensation Appeals Board issued an en banc decision

They indicated that a compromise and release, without more, is not a basis for apportioning under Labor Code section 4664 (b). A compromise and release does not constitute an “award of permanent disability”

However, where there is a prior claim and Compromise and Release even thought there is no prior disability, the medical reports and other evidence may be “other factors”. Under Labor Code section 4663 “other factors… including prior injuries” are a proper basis for apportionment. Here, the WCJ did not consider that

The WCAB did indicate that you could rehabilitate yourself from a prior injury under section 4663, but not 4664.

90 Day Denial May Be Rebutted With Reasonable Diligence

The applicant filed a workers’ compensation claim form on

November 27, 2000. A delay later issued on December 21, 2000. This is past the 14 day time limit. On February 26, 2001 the adjusted decided to deny the claim. The applicant received the denial on February 27, 2001. This was 92 days after the claim form was received.

The case was heard by a Workers’ Compensation Judge (WCJ) that first determined that the denial was timely (within 90days). Therefore, Labor Code section 5402, which presumes compensability, did not apply because the denial was timely.

The WCJ found the psychiatric case was not compensable because of a good faith personnel action under Labor Code section 3208.3.

The applicant filed a petition for reconsideration and the WCJ recalculated the 90 days and found the denial untimely. The WCJ, concluded, however, that the medical evidence rebutted the presumption. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and indicated that the medical evidence could not have been reasonably obtained in the 90 days.

The appellate court on review indicated that medical evidence should be obtained within 90 days. The court indicated that the adjusters testimony that the adjuster could not obtain a medical within 90 days was sufficient. The doctors were too busy to set an appointment within the 90 days.

The case is also interesting to read for the determination of what qualifies as a “good faith personnel” action. In this case two-thirds of the applicants psychological injury was caused by “good faith personnel actions”.

Therefore, the applicant did not meet the standard for a psychiatric injury.

Labor Code 3208.3 (h) Good Faith Personnel Action

The court of appeal, in a published decision, has given a definition to a “good faith personnel action” under Labor Code section 3208.3 (h).

The applicant was employed by the City of Oakland for 30 years and rose through the ranks to a supervisor. The director of the department that the applicant worked in informed the applicant his position was going to be eliminated.  The applicant accepted a position and was later demoted. The applicant filed a stress claim and left work.

The Workers’ Compensation Judge (WCJ) concluded after trial that the employer did not prove that its personnel actions were in good faith.  The WCJ found the injury industrial.  The employer petitioned for reconsideration and the Workers’ Compensation Appeals Board (Board) upheld the WCJ.

Since there was no prior case that defined what a “lawful, nondiscriminatory, good faith personnel action” the appellate court looked at a wrongful termination case Cotran v. Rollins Hudig Hall Internal. Inc. (1998) 17 Cal 4th 93 (Cotran). This case described that there must be a “objective good faith standard” in determining the employers conduct.  This appellate court concluded that 3208.3 has a similar meaning to the objective good faith standard.

The employer is allowed a certain freedom in making its regular and routine personnel decisions. “To be in good faith, the personnel action must be done in a manner that is lacking outrageous conduct, is honest and with a sincere purpose, and is without intent to mislead, deceive, or defraud, and is without collusion or unlawful design.”

The appellate court indicated that the Board was trying to use a “no fault” concept for 3208.3 which is not the proper test.

This court concluded that even if mistakes were made in the process of the demotion of the applicant it was still a good faith personnel action within the meaning of section3208.3.  Based on the particular facts of this case the appellate court indicated that the only conclusion is that this was a good faith personnel activity according to 3208.3. “Good faith personnel action” they indicated may elude a precise set of rules or definitions. But here a regular and routine employment event was carried out in a reasonable manner with no hint of improper motive. Therefore, the WCJ and the Board were overturned.

In this case the applicant’s own testimony proved the good faith personnel action.

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