An injury resulting from a misdemeanor traffic stop is ruled non compensable

This is an order denying reconsideration case

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

The applicant alleged an injury during a traffic stop when officers pulled him from his vehicle and  threw him to the ground injuring his lumbar spine, both knees, wrists, and left ankle. The applicant was charged with five misdemeanor counts. The applicant pleaded guilty to two misdemeanor counts that carried both the potential for jail time and fines.

The case went to trial and the Worker’s Compensation Judge (WCJ) ruled the injuries non compensable due to the commission of a crime under Labor Code section 3600 (a)(8). The applicant filed a petition for reconsideration indicating the labor code section was only applicable to felonies and not misdemeanors.

The Workers’ Compensation Appeals Board (WCAB) reviewed 3600 (a)(8) and indicated that though the statute indicated felonies it also provided a bar for any crime punishable as specified in Penal Code section 17 (b). Section 17 (b) includes crimes punishable by a fine or imprisonment in a county jail.

The WCAB ruled the applicant pleaded guilty to such crimes even though misdemeanors. The applicant’s injuries were caused by the commission of a crime punishable by fine or imprisonment and therefore, were not compensable. The petition for reconsideration was denied and the applicant received nothing.

Johnson v/ Lexmar Distribution

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


Psychiatric injury is supported by substantial medical evidence and compensable on applicant’s unrebutted testimony

This is a Board Panel decision

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

              The applicant filed a psychiatric/stress claim covering a period of 2009 through February 12, 2020. The applicant claimed he was denied two promotions. He claimed he was being characterized as a racist at work. He indicated he had negative performance evaluations after having written a whistleblower letter.

The primary treating physician (PTP) determined that the applicant had a psychiatric injury based on four specific work events that caused 90 per cent of applicant’s psychiatric injury.

The Qualified Medical Examiner (QME) determined the applicant had not suffered a psychiatric injury.  The QME determined the applicant had a long-standing personality disorder which likely developed in adolescence.

At trial the Workers’ Compensation Judge (WCJ) rejected the QME report as not substantial medical evidence and relied on the PTP. The WCJ concluded the applicant’s testimony was objective evidence and it was credible and unrebutted by the defense.

The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB)  agreed with the WCJ that the defense failed to present evidence that their actions were lawful, nondiscriminatory, good faith personnel  actions. Therefore, the case was compensable.

Larson V. County of Los Angeles Department of Regional Planning

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


Psychiatric injury follows partial finger amputation justifying and enhanced permanent disability award

This a very significant case for workers’ compensation principles.

The applicant was a gardener who fell while using a hedge trimmer suffering injuries to his right middle and ring fingers resulting in partial amputations. 

The applicant saw multiple physicians including psychiatric and pain management.

At trial the parties stipulated that the applicant suffered injury to the right hand resulting in a 47 per cent permanent disability. Defendants contended the applicant had no psychiatric disability. The Workers’ Compensation Judge (WCJ) determined there was substantial medical evidence the applicant had a psychiatric disability and awarded a 70 percent disability based on a combination of physical and psychiatric impairments. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) ruled the defendant stipulated to injury therefore, stipulating to a direct injury not a result of a physical injury, but a psychiatric injury from the event itself.

The WCAB the indicated the injury fell under two exceptions to Labor Code 4660.1 (c). The partial amputation qualified as a “significant violent act” and also qualified as  a “catastrophic” injury because it was analogous to a loss of limb.

Therefore, the WCJ was correct in finding psychiatric injury and awarding 70 percent liability.

Bolivar v. Heredia

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


General and Special employers jointly and severally liable for compensation benefits

This is a Board Panel Decision

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

The applicant was a residential energy technician for Southern California Gas Company and a union regional officer for Utility Workers Union of America.

At the time of his injury the applicant was in a union vehicle driving to the union office to participate in a study for contract negotiations with the Gas company.

At trial,  The Workers’ Compensation Judge (WCJ) ruled the applicant was an employee of the gas company but not the union.

The Gas company filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) indicated that it is possible for a worker to have two employers for workers’ compensation purposes. If one employer lends an employee to another employer, the lending employer is known as the  “general employer”. The employer bowering the employee is the “special employer”.

In this case the WCAB determined the gas company was the general employer and the union was the special employer. They discussed the 9 factors to determine a special employer.

In this case they determined there was a “dual employment relationship”. They found the applicant was employed by both the gas company and the union on the date of injury and therefore, they were joint and severally liable.

Robles v. Southern Calif Gas Co.

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


Permanent Total Disability Award for a Combined Specific and Cumulative Trauma Claims Awarded

This is a Workers’ Compensation Appeals Board (WCAB) Panel decision

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

             The applicant fell from a ladder to the floor on April 12, 2012. She underwent a laminectomy in March of 2013 and returned to work shortly thereafter. She stopped working April 8, 2013.

Applicant filed a specific for the April 12th fall.  Applicant filed a cumulative trauma through April 8ty 2013. The applicant had a spinal cord stimulator which was later removed. The applicant became wheelchair bound.

The applicant was seen by an Agreed Medical Examiner. (AME) who determined the applicant had failed back syndrome. The AME determined the low back disability could not be apportioned between the two injuries.  He gave the applicant a 80 per cent whole person impairment but determined she was totally disabled from a medical standpoint.

At trial, the Worker’s Compensation Judge (WCJ) consolidated applicant’s specific and cumulative trauma cases. He awarded 100 percent disability without apportionment between injuries. Defendant filed a Petition for Reconsideration.

The Workers’ Compensation Appeals Board (WCAB) indicated the burden of apportionment is on defendant. The AME was unable to apportion between injuries because they were inextricably intertwined. Therefore, the award of 100 percent disability was approved.

Lee v MakeshopNcompany

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


Newsletter Sign up

SUBSCRIBE to our
Workers Compensation Feed

Recent Newsletters

Categories

Archives