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

This is a published case

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

The applicants both had admitted injuries. Both applicants needed interpreter services for their injuries. The interpreter service submitted invoices to defendant for services provided.

Defendant denied payment and issued explanations of review pursuant to Labor Code section 4603.3. The lien claimant objected to the explanation, but did not seek a second review pursuant to section 4603.2 or section 9792.5.

The liens went to trial. The parties stipulated that the interpreters were necessary. They submitted timely invoices. Defendant issued an explanation of review but lien claimant did not seek a second review.

The Workers Compensation Judge (WCJ) found the liens were not barred. Defendant filed a petition for reconsideration and the Workers Compensation Appeals Board (WCAB) denied the petition.

Defendant filed the writ of review. The appeals court looked at the applicable fee schedule under Labor code section 4603.3, 4603.2 and Title 8, Section 9795.3. They also reviewed case law.

The appellate court ruled that the WCAB lacked jurisdiction to hear the lien claimants dispute. There was an applicable fee schedule. There was an “amount of payment” under the schedule. The statute required lien claimant to file a second review within 90 days. Since they did not do so the bill was deemed satisfied pursuant to 4603.2


Workers’ Compensation Appeals Board rules on Special Risk Exception to Going and Coming rule

This is a writ denied case

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

The applicant claimed an injury in a head-on motor vehicle accident on the way home from work. The applicant was a nurse and claimed that he had to work a mandatory second shift and was injured on the way home. The employer said the shift was voluntary.

The Workers’ Compensation Judge (WCJ) ruled the injury was industrial and fell within the “special risk exception” to the “going and coming rule”. The Workers’ Compensation Appeals Board (WCAB) on petition for reconsideration rescinded the award and barred the claim. The WCAB reviewed General Ins. v WCAB (Chairez) and the two prong test. But for the employment, the applicant would not have been at the location where the injury occurred, and the risk was distinctive from that of the general public.

The WCAB decided the applicant was not exposed to any extraordinary risk in comparison to that of the general public. It was determined the applicant chose to work the second shift. It was not a requirement. The risks in his commute were no different than the general public.

It was determined his commute and motor vehicle accident fell within the “going and coming rule” and was not a compensable work injury.


Apportionment not granted when disability between two injuries cannot be separated

This is a writ denied case

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

The applicant had an admitted orthopedic, internal and psychiatric specific injury on 10/15/2002. The applicant also alleged a cumulative trauma from 10/15/2002 to 1/2/2003.

The applicant saw an Agreed Medical Examiners (AME) in orthopedics, internal medicine and psychiatry. All three provided opinions on apportionment between injuries.

At trial the Workers’ Compensation Judge (WCJ) awarded the applicant 39 percent permanent disability for the specific and 68 percent permanent disability for the cumulative trauma after apportionment between the injuries.

The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) granted reconsideration and submitted new rating instructions to the rater. The rater came up with a combined rating of 83 percent for the specific and the cumulative trauma. The WCAB rescinded the award and issued a joint award for 83 percent.

The WCAB reviewed Labor Code section 4663 and Benson v. WCAB. They determined apportionment must be based on causation, except when the contribution of separate injuries cannot be parceled out by an evaluating physician. Here the disability was inextricably intertwined. Therefore, a combined PD award issued of 83 percent.


Applicant was found to have three injuries and two separate periods of cumulative trauma

This is a writ denied case

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

In most cases the applicant has only one cumulative trauma. This case was different in that more than one cumulative trauma was found.

The applicant filed a cumulative trauma against an employer for the period of 1985 to 1995. The date of injury under Labor Code section 5412 was found to be in 1995, with Labor Code section 5500.5 going back one year from that date.

A specific injury was filed for 1993. Then a separate cumulative trauma was field against a different employer for 1996 to 2007. A date of injury was found under Labor Code section 5412 of 2006 when the applicant first missed time from work. Then 5500.5 was applied for the last year of employment.

At trial the Workers’ Compensation Judge (WCJ) found two separate cumulative traumas rather than a single cumulative trauma indicating defendants failed to raise the issue of a single cumulative trauma at trial.

The Workers’ Compensation Appeals Board (WCAB) affirmed the WCJ indicating the issue was not timely raised.

Additionally, they indicated that separate cumulative trauma injuries cannot be treated as a single cumulative trauma where there are separate periods of disability and separate periods of need for medical treatment.


The statute of limitations is determined by Labor Code section 5412

This is a writ denied decision

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

The applicant filed an application for a cumulative trauma to his neck and spine that ended on July 11, 2012. The application was not filed until July 6, 2015. This was almost three years after his last date of employment.

The applicant had prior complaints of neck pain and indicated that he thought the pain was caused by work. However, he did not report an injury. He also did not have a medical opinion that the neck complaints were work related. The applicant then obtained a medical opinion on July 14, 2014. It was determined at that time he had a work-related injury and he had permanent disability.

This was applicants first medical knowledge that the injury was industrial. The case went to trial and the defendant raised the statute of limitations as a defense. The Workers’ Compensation Judge (WCJ) found that under Labor Code section 5412 the date of injury was not until July of 2012, and therefore, the statute of limitations did not apply.

In denying the petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) noted that the applicant being aware of pain is not synonymous with knowledge of an industrial injury. The applicant is not charged with knowledge of the injury until they receive medical advice of the causal connection, unless the applicant has medical training or knowledge. This applicant did not. Therefore, the statute did not apply.


A psychiatric claim on a petition to reopen was allowed even though it was never raised on original claim

This is a writ denied decision

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

The applicant suffered a compensable injury to his left shoulder, hands and neck due to a cumulative trauma. The case went to trial and the Workers’ Compensation Judge (WCJ) issued a Findings and Award for 69% permanent disability.

Thereafter, the applicant filed a timely Petition to Reopen for New and Further disability. The applicant alleged a psychiatric disability for the first time as a compensable consequence of the original disability. There was substantial evidence of the psychiatric disability before the original trial, but no psychiatric claim was made.

The WCJ found the applicant was precluded from raising the psychiatric claim on the petition to reopen. The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) found the applicant was not precluded from raising the psychiatric claim. They reasoned that even though applicant was aware of psychiatric symptoms there was no substantial evidence before the original trial establishing industrial causation.

Here, even though there was knowledge, there was no diagnosis using DSM III prior to the original trial.

The WCAB granted reconsideration. The Court of Appeal denied the writ that was filed. The court of appeal indicated that panel decisions are citable authority.


Workers’ Compensation Appeals Board rebuts scheduled rating to make applicant 100 per cent

This is a Writ Denied case

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

The applicant suffered a right arm injury resulting in an amputation. The applicant also suffered left shoulder and psyche injures. The applicant was seen by his treating psychologist and an Agreed Medical Examiner (AME) for the orthopedic injuries.

A formal rating was issued by the DEU of the applicant’s injuries of 92 per cent. Both doctors indicated the applicant was unable to return to his former occupation and could return to modified work with certain restrictions. There was no evidence the employer could accommodate the restrictions.

At trial the Workers’ Compensation Judge (WCJ) determined that the applicant was not amenable to rehabilitation or modified work with the defendant. The WCJ discounted the vocational expert on the grounds that the applicant’s work life of 1.1 years had already been exceeded. The WCJ found the applicant permanently and totally disabled (100 per cent).

The Workers’ Compensation Board (WCAB) on reconsideration agreed with the WCJ. The applicant’s permanent disability was greater than the scheduled rating based upon substantial evidence that the applicant was not capable of vocational rehabilitation. The scheduled rating is presumptively correct but may be rebutted. Here the WCJ relied on the entire record to determine the applicant was precluded from rehabilitation or performing modified work. Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding. HB


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.


A panel qualified medical examiner is entitled to payment of the evaluation fee if there was no timely objection to a late report

This is a Writ Denied case

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

The applicant alleged an industrial cumulative trauma. The parties chose a panel qualified medical examiner in pain management. The doctor issued the report on the 38th day. The applicant objected to the report as untimely. Defendant did not object until later.

A replacement panel doctor was issued but the parties did not seek an evaluation from the replacement. The parties eventually settled the case based on the initial doctor’s reports. The defendants agreed to pay the doctor. After defendants failed to pay the doctor the doctor filed a petition with the Workers’ Compensation Appeals Board (WCAB).

The Workers’ Compensation Judge (WCJ) indicated the defendant was not liable for the payment because the report was untimely under Labor Code section 4062.5.

The WCAB noted that under section 139.2(j)(1) and 4062.5 an initial report must be prepared within 30 days of the evaluation which was not the case here. There was no question the report was late.

The WCAB indicated that the attorneys waived their right to the late reporting by failing to object at the earliest available opportunity. The failure to object at the first opportunity is a waiver of the issue. The only objection that was made was not timely either. An objection has to be made prior to the doctor serving the report. Therefore, the WCAB ruled the doctor had to be paid.


Lien claimant is not allowed additional fees in excess of official medical fee schedule

This is a Writ Denied case

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

The applicant suffered a serious injury in an explosion that resulted in third degree burns to 43 percent of his body. The applicant was hospitalized for months at a burn center. He settled the case for a 99 per cent Stipulation.

The burn center was reimbursed $346,201 by defendants. The burn center filed a lien for an additional $269,094.

The lien went to trial before a Workers’ Compensation Judge (WCJ). The WCJ found the compensation to the burn center was not reasonable under the official medical fee schedule and awarded an additional $176,800. The defendant filed a petition for reconsideration with the Workers’ Compensation Appeals Board (WCAB). Defendant alleged the WCJ could not allow a fee in excess of the official medical fee schedule.

The WCAB indicated that Labor Code section 5307.1 governed and that any reimbursements for extraordinary circumstances were deleted in 2004. Any exceptions did not apply to the burn center so they could not receive anything in excess of the official medical fee schedule. They reversed the WCJ.

The burn center sought reconsideration of the WCAB decision and the WCAB granted review. The WCAB ruled that Gould v. WCAB did not apply. They ruled the official medical fee schedule could not be rebutted in this situation. The burn center filed a writ which was denied.


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