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 The Workers’ Compensation Appeals Board (WCAB) rescinded the WCJ decision in a split panel decision.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.


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


Court of Appeal review sudden and extraordinary employment condition for psychiatric case

This is a published appellate decision

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

The applicant had a work related back injury that resulted in two surgeries. He also claimed a psychiatric injury. The applicant worked at the employer less than 6 months.

The injury occurred when a compactor he was using struck a rock. It caused the applicant who was on a slope to fall backwards. The compactor fell on top of him.

The applicant contended the psychiatric injury was a sudden and extraordinary event because he had not worked there for 6 months. At trial, The Workers’ Compensation Judge (WCJ) found the psychiatric claim compensable because this type of injury could not have been anticipated and was not foreseeable.

On petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) affirmed the WCJ decision based on credibility.

The appellate court reviewed section 3208.3 (d). They then reviewed cases on sudden and extraordinary events. They reviewed Matea v.WCAB, SCIF v WCAB (Garcia) and Travelers v WCAB (Dreher).

Here they indicated the applicant did not meet the burden of proof that a sudden and extraordinary employment condition caused his injury. The applicant did not introduce any evidence of this. The applicant failed to introduce evidence that this was an uncommon, unusual or unexpected event. HB


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.


Appellate Court discusses psychiatric injury resulting from sudden and extraordinary employment condition

This is a published decision of the appellate court.

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

The applicant was working for his employer for only 74 days when he fell and suffered numerous injuries. He suffered a fractured pelvis and injuries to the neck, right shoulder, right leg and knees. He suffered a sleep disorder and headaches. He had surgery to repair his pelvis and a torn meniscus. He had additional surgery to his right foot and ankle.

He filed for a psychiatric injury. He alleged depression, difficulty sleeping and panic attacks.

The case went to trial and the Workers’ Compensation Judge (WCJ) denied the claim for psychiatric injury. The WCJ indicated the claim was barred by Labor Code section 3208.3 in that the applicant did not work for the employer for 6 months and did not result from a sudden and extraordinary event.

The Workers’ Compensation Appeals Board (WCAB) on petition for reconsideration found it was caused by an extraordinary employment condition.

The appellate court reviewed the statute and relevant cases. They indicated that the slip and fall was an accident that could reasonably be expected to occur. It was not the result of a sudden and extra ordinary event. Therefore, there was no psychiatric injury. The case should be reviewed for the discussion of what constitutes a sudden and extraordinary event.


Death Benefits Awarded to employee’s widow for a worker who died in the restroom with heart disease

This is a Court of Appeal non published case

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

The decedent was a tractor driver. He drove a tractor 10 hours a day and up to as many as 12 hours in one day. On one day he was washing mud off a tractor and disc when he reported having chest pain.

The foreman was going to drive the decedent to the doctor, but the decedent wanted to use the restroom first. He went in to a portable toilet and did not come out. The door was forced open and he was found dead.

The coroner indicated he died of natural causes. The widow filed a death claim. Two doctors reported that the heart attack resulted from the physical strain he exerted while using the restroom.

At trial the Workers’ Compensation Judge (WCJ) found the death compensable on the basis that his restroom activities arose out of and during the scope of his employment. A normal bodily movement was considered incidental to the employment.

Defendant filed for reconsideration. The Workers’ Compensation Appeals Board denied the petition and defendant filed a writ.

The appellate court upheld the decision indicating that when an employee suffers a heart attack brought on by strain it is compensable even though an idiopathic condition previously existed. The strain need not be unusual. The widow received a death benefit of $320,000.


Court of Appeal case on professional athlete filed seventeen years after the cumulative trauma

This is a Court of Appeal published case

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

The applicant filed a cumulative trauma injury as a professional athlete from 1981 to 1984 in 2011. The applicant was a member of the New York Knickerbockers an out of state basketball team.

The applicant played games in California and played preseason games for the Los Angles Clippers. He first learned of his right to file Workers’ Compensation benefits in 2011.

The Workers’ Compensation Judge (WCJ) found the applicant suffered a cumulative trauma to his back. The WCJ determined the Statute of Limitations and the Doctrine of Laches did not apply due to the applicant not being advised of his rights. The applicant was given a 76 percent disability.

The Workers’ Compensation Appeals Board (WCAB) affirmed the WCJ and concluded there was no denial of due process in exerting subject matter jurisdiction over the applicant.

On appeal the defendant filed an unverified petition for Writ of Review. After oral argument the court let the defendant file the verified petition. It was also argued the appeal was filed in the wrong district. The court indicated that filing in the wrong district is not a jurisdictional defect.

The appellate court indicated California had a legitimate interest over the applicant’s injuries and affirmed benefits. It was remanded to award attorney fees for defendant filing the petition for review.


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