Applicant cannot receive temporary disability for time lost for treatment medical appointments after return to work

This is an appellate court decision

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

The applicant had two specific injuries. The applicant was found permanent and stationary for one injury but not the other. The applicant returned work.

The applicant then missed time from work for medical treatment appointments and for appointments with the Qualified Medical Examiner. The applicant used sick time and vacation time for the appointments.

At a hearing the applicant claimed she was entitled to temporary disability (td) payments for the time missed from work. The Workers’ Compensation Judge (WCJ) ruled under section 4600 (e)(1) that that the applicant was not entitled to td for an appointment for medical treatment. The WCJ did not rule on the QME time lost.

The applicant filed for reconsideration. The WCJ on the report and recommendation again indicated the applicant is not allowed td for medical treatment but indicated the applicant can get one day of td for the QME exam. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ. The appellate court reviewed Department of Rehabilitation v WCAB and determined the applicant is not entitled to temporary disability indemnity for missed time from work to attend appointments for medical treatment. The applicant is entitled to td for the missed time for a medical examination as opposed to treatment.

Case:Skelton v WCAB


Applicant convicted of attempted perjury for lying at deposition even though the transcript was never signed

This is an appellate court decision

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

The applicant claimed an ankle injury occurred on January 24, 2017 between 1 and 2 am. The applicant wrote a memo detailing the injury including the date and time. It was also reported to the supervisor and the insurance company as having occurred on that date at that time.

The employer had video evidence of that date and time and saved the footage. No evidence of an injury was visible in the video.

The applicant’s deposition was taken and the applicant testified to the injury occurring between 3 and 4 am. The applicant was asked if he previously reported the injury at 1 am and he testified he did not.

The parties stipulated that if the unsigned original transcript was not returned within 60 days, a certified copy could be used for all purposes. The applicant did not sign and return the transcript.

The applicant was referred for prosecution and charged with seven counts of insurance fraud and three counts of attempted perjury. The jury convicted the applicant of perjury but could not reach a verdict on all
other counts. The appellate court indicated that all elements of perjury were not met at trial but under People v Post, the crime of attempted perjury was met. Therefore, the applicant’s crime of attempted perjury was upheld on appeal.

Case: People v. Ibarra


Workers’ Compensation Appeals Board holds that you cannot claim credit for permanent disability advanced on wrong case

This is a Decision after reconsideration.

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

The applicant sustained a cumulative trauma to the cervical spine and lumbar spine.  The applicant also sustained a specific to the cervical spine.

The applicant was found to have a 28 percent permanent disability on the cumulative trauma. The applicant was found to have a 23 percent disability on the specific injury. The doctor had apportioned between the injuries.

The defendant made permanent disability advances of $36,000 on the specific injury. The defendant made no permanent disability advances on the cumulative trauma.

The case went to trial and the defendant claimed credit for overpayment of permanent disability advances on the specific injury. The defendant wanted those overpayments to be applied to the cumulative trauma.

The Workers’ Compensation Judge (WCJ) denied the credit indicating the defendant was not entitled to credit from one injury on to another. The defendant filed a petition for reconsideration contending that since it was a public entity this was an impermissible “gift” by a public entity.

The Workers’ Compensation Appeals Board  (WCAB) found no merit to this argument. The WCAB agreed with the WCJ that you can not take credit for permanent disability advances for a specific injury on a separate cumulative trauma injury.


Workers’ Compensation Appeals Board holds that a good faith personnel action is exempt from the 90 day limit

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

The applicant alleged a cumulative trauma to his psyche, brain, head and headaches. The parties stipulated that the defendant did not deny liability within 90 days pursuant to Labor Code section 5402 (b). The defendant contended that a good faith personnel action under Labor Code section 3208.3 (h) fell outside the scope of the 90 day limit pursuant to 5402 (b).

The Workers’ Compensation Judge (WCJ) ruled that the good faith personnel action was subject to 5402 (b) and could only be established by evidence that could have been obtained within 90 days of the filing.

Defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ decision. The WCAB looked at the language of both statutes.  It also reviewed the case of James v. WCAB. The Board determined that a good faith personnel defense obtained more than 90 days after the receipt of the claim form was permissible even if that evidence was obtainable with reasonable diligence within the 90 days of receipt of the claim form.

The Board looked at the language that indicated a higher threshold for compensability under Labor Code section 3208.3. This higher level of compensability applied not withstanding any other provisions of the code including the 90 day provision of Labor Code 5402 (b). Therefore, the 90 day was not applicable.


Workers’ Compensation Appeals Board rules doctrine of laches applies to deposition fees

This is a writ denied case

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

The applicant sustained an admitted injury.  The applicant’s deposition was taken on 2/8/2001 and 12/12/2001.  The case settled by way of Compromise and Release (C&R) in 2004. The language of the C&R indicated the defendants were to pay reasonable deposition fees within 20 days, and the balance subject to continuing jurisdiction.

The applicant first made a demand for deposition fees in 2005, four years after the depositions. Defendant first paid a deposition fee in 2010 and a second deposition fee in 2018.

The applicant attorney claimed deposition attorney fees in addition to what was paid and it went to hearing.  The applicant attorney also claimed penalties and sanctions.

The Workers’ Compensation Judge (WCJ) indicated deposition fees are discretionary, not mandatory. The WCJ noted that the request for deposition fees came four years after the first deposition, three and half years after the second deposition, and more than one year from the date of the C&R. Applicant’s attorney argued that the language of the C&R indicated the defendant must pay. The WCJ ruled that language was vague and ambiguous. The WCJ ruled that the inadequate and delayed request for attorney fees was prejudicial to defendant and barred by the doctrine of laches. On Petition for Reconsideration the WCAB agreed. No penalty was allowed.

Case: Shandler and Associates v WCAB


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