Telephonic trial did not violate defendant’s Due Process Rights or Governor’s Order
- Posted By: Harvey Brown
- March 30, 2021
This is a Board Panel Decision
This is a very significant case for workers’ compensation principles.
The applicant sustained an injury in a physical altercation. The defendant denied the claim contending the applicant was the “initial physical aggressor” and thus barred from recovery.
The case was tried after the Workers’ Compensation Appeals Board (WCAB) stopped conducting in person trials because of Covid-19 restrictions.
The case was to be tried by telephonic link. The defendant objected claiming that the Workers’ Compensation Judge would not be able to give an adequate assessment of the witnesses’ testimony by a telephone call or video conferencing. The WCJ denied the defendants request and the trial was held telephonically with video conferencing.
The WCJ issued a decision finding the claim compensable and finding the defendant was not the initial physical aggressor. This was after listening to all witnesses telephonically. The defendant filed a petition for reconsideration.
The WCAB indicated that due process only requires a hearing appropriate to the nature of the case. The need for a remote hearing was not base on whimsy. The need for a remote hearing was based on the advent of a global pandemic. Due process is based on the circumstances as they find them. Here there was a global pandemic. Therefore, the defendants’ s due process rights were not violated.
Johanson v. San Ramon Valley Unified School District
Editor: Harvey
Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586
- Posted In: Work Injury
Low Back not included in Compromise and Release so it was not settled
- Posted By: Harvey Brown
- February 28, 2021
This is an opinion and decision after reconsideration
The applicant alleged injury to multiple body parts including the low back. The parties entered into a Compromise and Release but it did not include the low back as part of the settlement.
The case went to trial on whether the applicant could still claim the low back even though the rest of the body parts were settled by Compromise and Release. The Workers’ Compensation Judge (WCJ) ruled since the parties were aware of the claim for the low back it was not settled.
Defendant appealed. The applicant struck the language in the C&R that discharged defendant form liability for any claims not mentioned. The Workers’ Compensation Appeals Board ruled the low back claim was not settled and remanded the case.
Romero v. Berberian Enterprises
Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
- Posted In: Appeal, Uncategorized, Work Injury
Defendant requested in person testimony for trial denied due to Covid pandemic
- Posted By: Harvey Brown
- February 1, 2021
This is a Petition for Removal
This is a very significant case for workers’ compensation principles.
The applicant alleged a psychiatric injury. The case was tried on March 10, 2020. The applicant gave both direct testimony and was cross examined. The trial could not be finished in one day. The case was continued to June 9, 2020 for defense witnesses. In light of the Covid-19 pandemic the Workers’ Compensation Appeals Board (WCAB) stopped conducting in-person trials as of March 16,2020.
Before the June 9, 2020 date the applicant requested the case continue by remote testimony. The defendant requested a continuance so in-person testimony could be elicited from three defense witnesses.
The Workers’ Compensation Judge (WCJ) continued the case set for September 1, 2020 stating that due process required in-person testimony of defense witnesses since applicant had previously given in-person testimony. The WCJ continued it to a time in the future when in-person testimony could be given.
Applicant filed a Petition for Removal. The WCAB indicated removal is an extraordinary remedy rarely used by the Appeals Board. However, they allowed here.
Next they turned to the issue of defendant’s due process. They indicated due process is a flexible concept. Due to the global pandemic the defendant’s due process rights were not violated. The case could be remotely tried.
Gao v. Chevron
Editor: Harvey
Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586
- Posted In: Disability, Technicalities, Work Injury
Applicant is deemed one hundred percent disabled with no need for apportionment
- Posted By: Harvey Brown
- December 28, 2020
This is a Board panel decision
This is a very significant case for workers’ compensation principles.
The applicant suffered an injury to his head, neck, back, shoulders, circulatory system,and psyche as aresult of an industrial motor vehicle accident.
The applicant saw multiple doctors including a primary care physician (PTP), neurological Qualified medical examiner (QME), and psychological Qualified medical examiner.
The psychological Qualified medical examiner apportioned 5 per cent to non industrial causes. A vocations expert testified the applicant was 100 per cent totally disabled.
The case went to trial. The Workers” Compensation Judge (WCJ) found that the applicant was 100 percent disabled and there was no legal basis for apportionment. The WCJ declined to follow the apportionment found by the psychological qualified medical examiner.
The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) reviewed the report of the psychologist They determined that the apportionment was not legal apportionment.
The psychologist did not explain how and why the apportionment contributed to his permanent disability.
Based on the opinions of the QME, PTP and vocational expert the applicant was deemed to be 100 per cent disabled.
Valdes v. City of Torrance
Editor: Harvey
Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586
- Posted In: Disability, Work Injury
If you file a DOR a petition for contribution is not required for contribution
- Posted By: Harvey Brown
- November 25, 2020
This is an order denying a writ of review
This is a very significant case for workers’ compensation principles.
Applicant filed a specific injury and a cumulative trauma. The first defendant covered the specific and part of the cumulative trauma.
Based on an Agreed Medical Examiner (AME) the date of the end of the cumulative trauma changed. The first defendant entered into a compromise and release for a cumulative trauma since the AME found no specific injury.
Eight days later the Workers’ Compensation Judge (WCJ) joined the second defendant on the cumulative trauma.
The first defendant filed a Declaration of Readiness to Proceed (DOR). The second defendant objected to the DOR “on contribution issues”. No petition for contribution was filed within one year.
The second defendant claimed to an arbitrator that the contribution issue was barred because no petition for contribution was filed within one year. The first defendant claimed estoppel indicating the second defendant knew of the contribution issue timely by way of DOR and emails. The arbitrator found the contribution issue timely.
The Court of Appeal in denying the second defendant’s writ indicated that a DOR is satisfactory under Labor Code section 5500.5 and WCAB Rule 10510. The DOR was deemed sufficient to institute proceedings.
Brotherhood Mut. Ins. V WCAB
Editor: Harvey
Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586
- Posted In: Appeal, Work Injury, Writ