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.


The Statute of Limitations was upheld in a Writ denied case

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 defense prevailed.

The applicant was a hostess and claimed a specific injury on 4/5/2008. The applicant waited until 2/6/2013 to file an Application for Adjudication of Claim. The Workers’ Compensation Judge (WCJ) found that the claim was not barred by the statute of limitations.

A Petition for Reconsideration was filed by the defendant. The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ.

The WCAB found that there was no reason to toll the statute. Applicant did not show that the defendant had sufficient notice of her claim. They also found there was no reason to provide a claim form or notice of potential eligibility for benefits.

They also indicated that a specific injury is different than a cumulative trauma. In a specific injury the statute of limitations begins to run from the date of the injury’s occurrence and not the date of knowledge. In a cumulative trauma it runs from the date of knowledge.

They further indicated there was no prejudice for the defendant to raise the statute of limitations.


Appellate Court finds a decision made by Independent Medical Review after the 30 day time limit is sufficient

This is a published decision of the appellate court.

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

The applicant had an admitted injury to her left foot and back. Applicant requested an epidural injection The carrier denied the request. Applicant requested an independent medical review.

The independent medical review (IMR) issued after 30 days denying the epidural. The applicant appealed the IMR determination to the Workers’ Compensation Appeals Board (WCAB). A Workers’ Compensation Judge (WCJ) determined the IMR determination was 13 days late, but the decision was still binding.

The applicant petitioned for reconsideration and the WCAB decided that the treatment was necessary. The defendant filed a writ with the appellate court.

The appellate court reviewed the statutes effecting Utilization Review. They reviewed Labor Code section 4610. They determined that an IMR decision as a matter of law is the final determination and binding on all parties.

The court focused on whether the word “shall” in the statute is directory and not mandatory. The statute contained no consequence or penalty if the IMR decision was not timely. If it was interpreted as mandatory that would yield absurd results. Therefore it was considered directory. The case was remanded back to the WCAB since the 30 day time limit was not mandatory.


Physician challenges constitutionality of $150 filing fee on certain medical liens

This is a published decision of the appellate court

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

A physician and surgeon who provides services to workers’ compensation patients filed a writ with the court of appeal. The doctor alleges that prior to passage of SB 863 he would submit bills for payment and they would be paid or denied and he could file for a hearing.

After passage of SB 863 the physician indicates that if the insurer does not pay or only partially pays his bill for services he has to pay a fee to file his lien.

He indicates that he has multiple liens and does not have the “personal reserves” to pay the filing fees. He indicates SB 863 prevents him from assigning the accounts to secure financing. Therefore, he avoids providing care on a lien basis to applicants who have been denied treatment. He is not allowed to bill the applicant directly.

The court reviewed section 4903.5 and concluded that the $150 filing fee was a valid restriction on the right to file a petition. The fee was constructed to fight “lien abuse” and improve the functioning of an “out of control” lien abuse system. The fee was designed to prevent abuse of the system. The court indicates there is also a way for lien claimant to get reimbursed for the filing fee. Therefore, the court did not find the filing fee violated the constitution. Three applicants also filed for a writ of mandate but were deemed to lack standing.


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.


WCAB allows applicant to testify remotely by SKYPE after being deported and unable to attend hearing

This is a writ denied case

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

The applicant suffered an industrial injury. The applicant was terminated from his employment and eventually deported. Due to the applicant being deported the applicant could not enter the United States legally.

The applicant could not attend a trial so applicant petitioned to be able to testify remotely by Skype or another method. The Workers’ Compensation Judge (WCJ) held a hearing to determine if the applicant could testify remotely. The WCJ ruled the applicant could testify remotely. The defendant filed a petition for reconsideration contending that the applicant should not be allowed to testify from Mexico by Skype due to being in the country illegally.

The WCJ indicated that just because someone resides outside the United States this does not terminate their legal rights. Once a person leaves the United States this does not terminate their rights under the California Labor Code.

The applicant was unavailable for trial as described by Evidence Code section 240. The applicant did not abandon his case. By allowing applicant to testify remotely at his own expense the WCJ indicated that both applicant and defendant were able to present evidence and cross-examine witnesses. The Workers’ Compensation Appeals Board denied reconsideration and allowed the applicant to testify remotely.


Case on tolling of the statute of limitations based on incompetency

This is a writ denied case

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

The applicant was a professional baseball player for the Houston Astros. Applicant had a massive stroke at age 34 rendering him physically and mentally disabled. He filed a cumulative trauma for various body parts including neurological. Twenty three days after filing the claim the applicant requested the case be dismissed. The Workers’ Compensation Judge (WCJ) dismissed the case.

More than a year later the applicant filed a second application. The defendant alleged the case was barred by the statute of limitations. The applicant alleged he was incompetent at the time he requested the original dismissal and asked that the original dismissal be set aside.

At trial the WCJ determined that the applicant was incompetent at the time he dismissed his case. This was based on medical evidence and testimony of the applicant that he was shocked to learn his case had been dismissed. The WCJ ruled that the statute of limitations was tolled. The WCJ ruled the dismissal null and void and appointed a guardian ad litem.

Defendant filed a petition for reconsideration and the Workers” Compensation Appeals Board (WCAB) agreed with the WCJ. The defendant then filed a Writ of Review. The appellate court found that there was no reasonable basis for filing the writ and returned the case to the WCAB to assess attorney fees against the defendant.


A writ denied case on lien claimant’s failure to appear results in dismissal of claim

This is a writ denied case of the court of Appeal

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

The applicant had an industrial injury. The applicant was treated by Lien Claimant. The case-in-chief settled and a lien conference was set. When the lien conference notice came in, the Lien Claimant sent the notice and the file to their general counsel. They did not include instructions for the general counsel to appear at the lien conference.

Lien Claimant believed their general counsel would appear at the lien conference. Neither Lien Claimant nor their general counsel appeared.

The Workers’ Compensation Judge (WCJ) issued a Notice of Intention to Dismiss the lien of $166,399.28 for non-appearance. The Notice was served on Lien Claimant and no timely objection was filed.

The WCJ issued the Dismissal of the lien. The Lien Claimant filed a Petition for Reconsideration. The Workers’ Compensation Appeals Board (WCAB) denied the petition stating the Lien Claimant did not show good cause for their non-appearance.

The Lien Claimant then filed a Writ, which was denied, thus the lien was dismissed.


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