Applicant is ruled Initial Physical Aggressor and the case is ruled Non Industrial

This is a Board Panel decision

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

The applicant was a school teacher. The teacher blocked a doorway to prevent students form leaving the classroom after class was over. He intended on telling several students they were failing the class.

A student attempted to exit the doorway. The teacher told the student to sit down. The student told the teacher to get out of his way. At that time some spit from the students mouth appeared to go toward the teacher. The teacher slapped the student in the face. The student them punched the teacher in the chest.

The teacher filed a workers’ compensation claim alleging a psychiatric injury with post traumatic stress. The case went to trial and the Workers’ Compensation Judge (WCJ) ruled the applicant suffered a psychiatric injury but compensation was denied by the initial physical aggressor rule. 3600 (a)(7). The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) reviewed case law including Mathews v. WCAB and Gegic v. WCAB.

The WCAB reviewed the psychiatrist report that applicant had sustained a psychiatric injury. Even though he had a psychiatric injury he was denied compensation as the initial physical aggressor.

The Board determined the student did not deliberately spit on the teacher it was just liquid released from his mouth while he was talking.


Applicant established Special Mission Exception to Going and Coming Rule

This is a Board Panel decision

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

The applicant was a doctor. He worked five days a week, 40 hours a week unless his supervisor asked him to work overtime.

His supervisor emailed him asking him to prepare a presentation. He walked to work. He left the hospital at 8 p.m. to walk home carrying his computer with the presentation. His supervisor called him to discuss the presentation. As he was talking to the supervisor he stepped off the curb and was hit by a car. He filed a claim and the defendant denied the claim base on the Going and Coming Rule. The case went to trial and the Workers’ Compensation Judge (WCJ) found the applicant was on a special mission and therefore, the claim was compensable.

The defendant appealed. The Workers’ Compensation Appeals Board (WCAB) indicated that under the going and coming rule injuries do not normally arise out of and in the course of employment. However, there are numerous exceptions.

The special mission exception is where the employee is performing (1) an extraordinary duty in relation to the employees duties; (2) is within the course of employment: and (3) has undertaken the duty at the express of
implied request of the employer for the benefit of the employer.

Here it was ruled the applicant was providing a service to the employer within the special mission exception.


This is a Board panel decision where a workplace cut or scrape led to an amputation that could become industrial

This is a Board panel decision

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

The applicant suffered a cut or scrape at work.  He also got a blister on his left toe.  The toe turned gangrene.  The applicant had new onset diabetes. His left foot progressively got worse.  The applicant first had an amputation to the low shin.  The condition spread and then he had an above-the-knee amputation.

The applicant saw an orthopedist who found the left toe gangrene was industrial.  The applicant then saw an internist that indicated the injury was not industrial.

The Workers’ Compensation Judge (WCJ) did not find applicant credible.  The applicant did not report any wounds to his foot to the employer.  The applicant filed a petition for reconsideration.

The Board reviewed the liberal construction code section 3202.  They also reviewed the case of Kimbol v IAC.  Then they reviewed McAllister v WCAB.  The Board indicated the question is whether there is a reasonable inference to support the claim for injury.

They looked at the existing medical opinions.  They concluded that the record was insufficient to determine causation. They suggested that the current physicians address the issue and if they cannot make a determination the WCJ should appoint a physician.

Therefore, they rescinded the decision and remanded for a determination on causation.


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 finds Administrative Director Rule 10133.54 Invalid

This is a Board En Banc panel decision

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

The applicant sustained an injury to his right wrist. The parties settled the case by Stipulations with Request for Award. The settlement did not include a supplemental job displacement benefits voucher (SJDB).

Defendant sent applicant a Notice of Offer of Regular, Modified or Alternative Work. Applicant filed a Request for Dispute Resolution Before Administrative Director requesting that the applicant be given a SJDB and objected to the offer of regular, modified, or alternative work.  The Administrative Director did not issue a determination pursuant to AD rule 10133.54 (f). The request was deemed denied.

The applicant filed a Declaration of Readiness to proceed on request for SJDB. The Workers’ Compensation Appeals Judge (WCJ) issued a decision that the applicant’s appeal was untimely. The applicant filed a Petition for Reconsideration contending he  was entitled to the SJDB.

The Workers’ Compensation Appeals Board (WCAB) issued a decision rescinding the WCJ and concluding the WCAB has exclusive jurisdiction over SJDB irrespective of AD rule 10133.54. Defendant sought reconsideration of that decision.

The WCAB ruled AD rule 10133.54 is invalid because it exceeds statutory authority. The WCAB has exclusive jurisdiction. It also ruled an employer must make a bona fide offer of employment.


Lien Claimants liens are deemed satisfied with no further payment due for failing to follow required procedures

This is an order denying reconsideration case

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

The applicant was standing on a curb using a shovel. A car struck the shovel
which flew into his shoulder injuring his shoulder. The car came within a foot of hitting him. The applicant was taken to the hospital where he was in shock about the accident.

The defendant admitted the neck and left shoulder injury but denied the psychiatric claim. The applicant received psychiatric treatment. A psychiatrist diagnosed the applicant with post traumatic stress disorder and an adjustment disorder with depressed mood.

At trial the applicant testified to nightmares and paranoia with cars backing up. The Workers’ Compensation Judge (WCJ) found the psychiatric case compensable. The WCJ found that the psychiatric injury was a direct result of the work incident itself. The WCJ reasoned that Labor Code section 4660.1 (c ) (1) did not apply to the facts. This only applies when the psychiatric injury is a compensable consequence of the original injury.

The Workers’ Compensation Appeals Board (WCAB) reviewed on reconsideration. They reviewed the statute and the Wilson case. The panel concluded that there was substantial medical evidence that there was a compensable direct psychiatric injury. Therefore, 4660 did not apply.


Applicant did not suffer a work related injury when he fell in a parking lot one block from work

This is a writ denied case

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

The applicant tripped and fell while walking after work from his place of employment to a parking lot one block away. The defendant denied the injury on the basis of AOE-COE raising the “Going and Coming’ rule. 

The employer did not provide parking for its employees. The supervisor gave suggestions as to different lots the employee could park. The lot the employee parked at was not on the employer’s premises. The employer did not own or control the parking lot.

The Workers’ Compensation Judge (WCJ) ruled the employee was not barred by the “going and coming” rule. The WCJ indicated the employer required the employees to park offsite and the employer benefitted from not having to provide parking for its employees. The WCJ indicated the employee was in the course of his employment while walking between his office and the parking lot.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) rescinded the WCJ decision in a split panel decision.

The WCAB ruled the was not a “special risk”. The WCAB ruled the applicant was subject to the same risks of walking between parking lot and the employers’ premises as any other pedestrian. They evaluated whether this was a “borderline case” and determined it was not. The injury was non industrial.


Applicant cannot receive temporary disability for time lost for treatment medical appointments after return to work

This is an appellate court decision

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

The applicant had two specific injuries. The applicant was found permanent and stationary for one injury but not the other. The applicant returned work.

The applicant then missed time from work for medical treatment appointments and for appointments with the Qualified Medical Examiner. The applicant used sick time and vacation time for the appointments.

At a hearing the applicant claimed she was entitled to temporary disability (td) payments for the time missed from work. The Workers’ Compensation Judge (WCJ) ruled under section 4600 (e)(1) that that the applicant was not entitled to td for an appointment for medical treatment. The WCJ did not rule on the QME time lost.

The applicant filed for reconsideration. The WCJ on the report and recommendation again indicated the applicant is not allowed td for medical treatment but indicated the applicant can get one day of td for the QME exam. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ. The appellate court reviewed Department of Rehabilitation v WCAB and determined the applicant is not entitled to temporary disability indemnity for missed time from work to attend appointments for medical treatment. The applicant is entitled to td for the missed time for a medical examination as opposed to treatment.

Case:Skelton v WCAB


Applicant convicted of attempted perjury for lying at deposition even though the transcript was never signed

This is an appellate court decision

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

The applicant claimed an ankle injury occurred on January 24, 2017 between 1 and 2 am. The applicant wrote a memo detailing the injury including the date and time. It was also reported to the supervisor and the insurance company as having occurred on that date at that time.

The employer had video evidence of that date and time and saved the footage. No evidence of an injury was visible in the video.

The applicant’s deposition was taken and the applicant testified to the injury occurring between 3 and 4 am. The applicant was asked if he previously reported the injury at 1 am and he testified he did not.

The parties stipulated that if the unsigned original transcript was not returned within 60 days, a certified copy could be used for all purposes. The applicant did not sign and return the transcript.

The applicant was referred for prosecution and charged with seven counts of insurance fraud and three counts of attempted perjury. The jury convicted the applicant of perjury but could not reach a verdict on all
other counts. The appellate court indicated that all elements of perjury were not met at trial but under People v Post, the crime of attempted perjury was met. Therefore, the applicant’s crime of attempted perjury was upheld on appeal.

Case: People v. Ibarra


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.


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