Personal jurisdiction over a out-of-state football team not proved and therefore no jurisdiction in California

This is a Board Panel decision

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

The applicant was a football player. He claimed injury to his head, neck, shoulder, elbows, bilateral wrists. hands, hips, knees, feet, TMJ, neuro, internal, psyche and sleep while employed by the Cleveland Browns.

The Browns employed the applicant for several weeks before releasing him and paying for his travel back to California. The Browns went to trial and contended there was no personal jurisdiction over them in California.

A Workers’ Compensation Judge (WCJ) ruled that there was not sufficient contacts with California to establish personal jurisdiction over the Browns and dismissed them.

A codefendant petitioned for reconsideration. The Workers’ Compensation Appeals Board (WCAB) in a Board panel decision agreed with the WCJ.

Applicant who resided in California testified that he never spoke to the Browns while in California. His agent, who was in Arizona, did not enter into a contract with the Browns while the applicant was in California. The applicant did not accept the offer of employment until he was in Ohio and had passed a physical examination. Applicant’s employment contract was not formed while he was in California. He never played a game in California.

The WCAB reviewed numerous cases and determined there was not sufficient contacts with California to confer personal jurisdiction. Therefore, the Browns were dismissed.

Lautner v. Baltimore Ravens

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


An injury resulting from a misdemeanor traffic stop is ruled non compensable

This is an order denying reconsideration case

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

The applicant alleged an injury during a traffic stop when officers pulled him from his vehicle and  threw him to the ground injuring his lumbar spine, both knees, wrists, and left ankle. The applicant was charged with five misdemeanor counts. The applicant pleaded guilty to two misdemeanor counts that carried both the potential for jail time and fines.

The case went to trial and the Worker’s Compensation Judge (WCJ) ruled the injuries non compensable due to the commission of a crime under Labor Code section 3600 (a)(8). The applicant filed a petition for reconsideration indicating the labor code section was only applicable to felonies and not misdemeanors.

The Workers’ Compensation Appeals Board (WCAB) reviewed 3600 (a)(8) and indicated that though the statute indicated felonies it also provided a bar for any crime punishable as specified in Penal Code section 17 (b). Section 17 (b) includes crimes punishable by a fine or imprisonment in a county jail.

The WCAB ruled the applicant pleaded guilty to such crimes even though misdemeanors. The applicant’s injuries were caused by the commission of a crime punishable by fine or imprisonment and therefore, were not compensable. The petition for reconsideration was denied and the applicant received nothing.

Johnson v/ Lexmar Distribution

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


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


Commercial traveler rule and neutral risk doctrine applied in case involving carbon dioxide exposure

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

The applicant was on  a business trip. He rented a vehicle and put two boxes of frozen fish  on dry ice in in his trunk.

He was later found unconscious in his car and administered CPR. He died and was diagnosed with a catastrophic hypoxic event caused by carbon dioxide exposure. 

Defendant denied the claim and a  trial was held. Defendant indicated that the Qualified Medical Examiner only indicated that it was difficult to conclude that the exposure to carbon dioxide contributed to the injury. Therefore, the defendant indicated that this did not meet the medical probable standard for compensability.

The Workers’ Compensation Judge (WCJ) ruled the case arose out of and in the course of employment. The WCJ ruled that the carbon dioxide was a contributing cause. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) ruled that all reasonable doubts as to injury are resolved in favor of the employee.  Even if the medical evidence is insufficient, the claim could be found compensable under the neutral risk doctrine. This is where the employee dies under unexplained circumstances at the workplace. The WCAB also indicated the commercial traveler rule would apply because the applicant was on a business trip.

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


You must object to Qualified Medical Examiner report prior to it being served in order to get a replacement panel

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

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

The applicant suffered an injury to the right wrist and claimed injury to the right upper extremity on February 4, 2020.

There was a panel Qualified Medical Evaluation (QME) performed on January 14, 2021. The report was served on the parties on March 9, 2021.  The applicant attorney did not object to the report as not being timely reported prior to it being served. The applicant attorney objected to the QME on March 9,2021 and asked for a replacement QME. The defendant objected.

The parties proceeded to trial.  One of the issues was whether the applicant was entitled to a replacement QME due to the report not being submitted within 30 days after the evaluator had seen the applicant.

The Workers’ Compensation Judge (WCJ) ruled that the applicant was entitled to a replacement panel evaluation. The defendant filed a petition for removal and the Workers’ Compensation Appeals Board (WCAB) treated it as a petition for reconsideration.

The WCAB indicated that if the QME fails to issue a formal evaluation prior to the deadline a party may request a replacement panel. The request for replacement panel on the grounds of lateness must be prior to the date the report was served. The party may not wait until the adverse report is served before raising an irregularity that it was not served timely. Here the report was served so the objection was not timely.

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


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.


Newsletter Sign up

SUBSCRIBE to our
Workers Compensation Feed

Recent Newsletters

Categories

Archives