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

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

The applicant claimed a cumulative trauma through May 2020. The applicant applied for benefits on March 23,2021. Defendant sent a delay notice on April 23, 2021.

Defendant indicated that in order to make a decision they needed a med-legal examination, prior medical  records, and applicant’s statement.

Applicant requested a chiropractic before defendant issued the denial notice.

An expedited hearing was held and the Workers’ Compensation Judge (WCJ) held that the panel QME list was invalid because it was obtained before the defendant denied the claim. Further the WCJ ruled there was no dispute while the claim was in delay.

Applicant petitioned for removal arguing the QME panel was valid.  The WCJ recommended removal be denied. The WCAB heard the case on removal.

The WCAB saw in defendant’s delay letter a need for a med-legal exam to determine the compensability of the claim. The Board rejected the WCJ opinion that there must be a dispute before applicant can initiate the QME process.  They indicated that a delay letter initiates the dispute because the claim is not accepted.  Waiting until a denial letter issued would be against public policy. The Board indicated the applicant properly obtained the QME.

Cervantes v. Classic Cosmetics, Inc

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


Apportionment of Independent Medical Examiner approved for prior overlapping disability

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

The applicant suffered a low back injury in November 2016.  At the first trial the Workers’ Compensation Judge (WCJ) ruled the Qualified Medical Examiner’s (QME) opinions were not substantial evidence and ordered an Independent Medical Examiner (IME).

The IME indicated the applicant had a 16 percent whole person impairment (WPI) and apportioned 25 percent of the applicant’s disability to a 2002 prior injury indicating it was “overlapping”.

At trial the WCJ indicated the IME’s opinion was substantial medical evidence and subtracted the prior WPI from the current WPI. The applicant petitioned for reconsideration contending the IME opinion was not substantial medical evidence.

The Workers’ Compensation Appeals Board (WCAB) indicated the IME reviewed extensive medical records and did not engage in surmise or speculation. The IME had a good idea what the applicant’s impairment rating was once he was stabilized from the 2002 injury.

The WCJ indicated that the correct way to subtract the apportionment of the prior injury was to take the prior standard and rate it out and then take the current standard and rate it out and subtract the prior rating. The WCAB agreed.


Workers’ Compensation Judge vacates a Compromise and Release based on a Zero-Dollar MSA

This is a Board Panel Decision

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

The applicant and the defendant negotiated a Compromise and Release (C&R). The applicant was unrepresented. The parties went to an Agreed Medical Examiner (AME). The AME concluded the applicant was malingering. He did state that the applicant’s work over many years contributed to his cumulative trauma to multiple body parts. He found the injury industrial.

The parties thought the AME found the case nonindustrial in negotiating the C&R. They concluded that Medicare had no interest in the settlement and did not submit a MSA to CMS for approval. The Workers’ Compensation Judge (WCJ) approved the C&R.

The applicant then received a request for reimbursement of medical expenses from CMS from his “nonexistent MSA”. The applicant then, unrepresented, petitioned for the C&R to be set aside on the grounds he mistakenly believed the zero-dollar MSA insulated him from having to pay his settlement to Medicare.

The WCJ set aside the C&R on mutual mistake of fact. The defendant petitioned for reconsideration because there was never any intention to submit the MSA to CMS.

The Board panel agreed with the WCJ. There was no “meeting of the minds” in the formation of the C&R because both parties mistakenly believed Medicare had no interest in the case, and that a zero dollar set aside would be appropriate.

Harrison v Canyon Springs
Pools and Spas Inc.
Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown


Fall from loading dock is a sudden an extraordinary event for Psychiatric purposes

This is an order denying reconsideration case

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

The applicant claimed an industrial injury to her tibia, humerus and psyche due to a fall.  The applicant did not work for the employer 6 months at the time of the injury.

The applicant was walking on a loading dock at work looking for the cafeteria when she fell on her second day of work. Defendant denies the applicant’s claim for psychiatric injury under Labor Code section 3208.3 (d) because she had not worked for the employer for 6 months.  The applicant went to a Psychiatric Qualified Medical Examiner who stated the applicant’s psychiatric injury was predominately industrial.

The case went to trial. The Workers’ Compensation Judge (WCJ) found the applicant’s psychiatric injury was a “sudden and extraordinary” event that was an exception to the six-months employment requirement under section 3208.3 (d).

The defendant petitioned for reconsideration contending that falls at work were common and “routine” and therefore, not a sudden and extraordinary event.

The majority of the Workers’ Compensation Appeals  Board (WCAB) panel in a split decision upheld the WCJ.  They cited Matea v. WCAB.  They ruled a fall from a loading dock was an unexpected risk. The applicant’s injury was not barred by 3208.3.


Permanent Total Disability reduced by prior award to same statutory body region

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


The applicant previously filed a claim for injury to upper digestive tract, a skin disorder, dietary restrictions, bruxism and TMJ for the cumulative trauma (CT) period of June 1980 to June 2015 and a specific of June 25, 2015 for his skin condition. The applicant received a permanent disability of 83 percent for these injuries.

The applicant then filed a ct for a period of June 1980 to February 2019 for colon cancer. The applicant was a firefighter battalion chief. The parties stipulated that the cancer was industrial pursuant to the firefighter presumption in Labor Code section 3212.1

The Workers’ Compensation Judge (WCJ) ruled that vocational evidence rebutted the rating schedule on disability and the applicant was 100 percent disabled.

The WCJ used the “catch all” provision of Labor Code 4664 (c) (1) (G) to calculate the prior award to be 34 percent for body parts that fall within that section. The WCJ then deducted the 34 percent for apportionment to give the applicant a 66 percent disability for the colon cancer injury.

The applicant filed a petition for reconsideration. The Board panel reviewed 4664 ( c) (1) (g) and case law. The Board approved the WCJ and indicated if apportionment was not allowed applicant would have received two life time pensions.

Russell v. County of Los Angeles


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


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