If you file a DOR a petition for contribution is not required for contribution

This is an order denying a writ of review

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

Applicant filed a specific injury and a cumulative trauma. The first defendant covered the specific and part of the cumulative trauma.

Based on  an Agreed Medical Examiner (AME)  the date of the end of the cumulative trauma changed. The first defendant entered into a compromise and release for a cumulative trauma since the AME found no specific injury.

Eight days later the Workers’ Compensation Judge (WCJ) joined the second defendant on the cumulative trauma.

The first defendant filed a Declaration of Readiness to Proceed (DOR). The second defendant objected to the DOR “on contribution issues”. No petition for contribution was filed within one year.

The second defendant claimed to an arbitrator that the contribution issue was barred because no petition for contribution was filed within one year. The first defendant claimed estoppel indicating the second defendant knew of the contribution issue timely by way of DOR and emails. The arbitrator found the contribution issue timely.

The Court of Appeal in denying  the second defendant’s writ indicated that a DOR is satisfactory under Labor Code section 5500.5 and WCAB Rule 10510.  The DOR was deemed sufficient to institute proceedings.

Brotherhood Mut. Ins. V WCAB

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


Panel finds good cause to set aside Order Approving Compromise and Release

This is a Board panel decision

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

The applicant sustained an accepted cumulative trauma injury to the low back and hips while working as a maintenance worker. The applicant saw a primary treating doctor who did not discuss permanent disability in his report.

A claims adjuster offered the unrepresented applicant a $7500 settlement without negotiations and did not explain the applicant had a right to a Qualified Medical Examiner (QME).

The applicant did not know what permanent and stationary meant and signed a Compromise and Release (C&R) that stated applicant’s temporary disability was ongoing based on the primary treating doctor. The C&R stated the applicant was not permanent and stationary.

Defendant’s attorney got the C&R approved on a walk-through. Two days later the defendant sent applicant a letter indicated his temporary disability was discontinued and his right to dispute this.

The applicant retained counsel who filed a petition to set aside the C&R. The Workers’ Compensation Judge (WCJ) concluded there was no good cause to set aside the C&R. The applicant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ. The panel ruled the applicant had not been given adequate notices of his rights before entering into the C&R.

Moreno v Hidden Valley Ranch


Ruling on cancer presumption under Labor Code section 3212.1 is upheld

This is an order denying appellate review

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

The applicant was employed as a probation officer. He was assigned to the
Narcotics Task Force under his employment for nearly two years. This was
through the State Bureau of Narcotics Enforcement. However, the County
where he was a probation officer paid his salary.

He was designated a Special Agent of the State and reported directly to the State. He had job duties that included incinerator operations and exposure to known carcinogens. The applicant later developed pancreatic cancer while employed by the County and filed a Workers’ Compensation claim asserting the cancer presumption of Labor Code section 3212.1.

The case went to trial and the Workers’ Compensation Judge (WCJ) found that there was substantial medical evidence supporting the applicant’s entitlement to the Labor Code section 3212.1 cancer presumption.
The applicant filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) in a Board panel decision agreed with the WCJ.

This resulted in the defendant filing for a Writ of Review with the appellate court. The appellate denied defendant’s petition for writ of review, concluding that substantial medical evidence supported a finding of the cancer presumption.


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


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