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 The Workers’ Compensation Appeals Board (WCAB) on petition for reconsideration rescinded the award and barred the claim.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 The WCAB rescinded the award and issued a joint award for 83 percent.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.


Court of Appeal overturns WCAB decision on apportionment in published case

This is a court of appeal case

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

The applicant had a work related injury. The applicant saw private physicians that did not believe the applicants vision loss was work related. The Qualified Medical Examiner (QME) believed it was work related. However, he apportioned disability to a pre-existing condition.

After the doctor’s deposition he apportioned 15% to industrial and 85% to non industrial.

At trial the Workers’ Compensation Judge (WCJ) found the apportionment was not supported by substantial evidence and did not allow any apportionment. The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and indicated that the QME confused causation of injury with causation of disability. Therefore, no apportionment.

The appellate court reviewed Brodie, Zemke, Escobedo, etc. They also reviewed Labor Code section 4663 and 4664. The appellate court indicated the QME understood the distinction between cause of injury and cause of disability. It is not required that an asymptomatic condition become symptomatic to receive apportionment. It is only required that substantial medical evidence state that an asymptomatic condition was a contributing factor of disability. Here there was substantial medical evidence to allow apportionment.


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.


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