The second batch of advanced postings for the April issue of Cal. Comp. Cases is now available on lexis.com. Lexis subscribers can link to the cases below.
United Airlines, PSI, Gallagher Bassett Services, Inc., Petitioner v. Workers' Compensation Appeals Board, Diana Brown Dodson, Respondents
75 Cal. Comp. Cases ***, 2010 Cal. Wrk. Comp. LEXIS 40
Permanent Disability--Apportionment--Overlap--WCAB upheld WCJ's finding that defendant failed to establish that 100-percent permanent disability caused by applicant/flight attendant's industrial injuries to her internal, musculoskeletal, respiratory, and immune systems, heart, sinuses, neck, back, and psyche during period through 4/10/96, was overlapped by 15-percent permanent disability awarded for 1987 injuries to applicant's back and neck so as to justify apportionment of prior award under Labor Code § 4664, Sanchez v. County of Los Angeles (2005) 70 Cal. Comp. Cases 1440 (Appeals Board en banc opinion), and Kopping v. W.C.A.B. (2006) 142 Cal. App. 4th 1099, 48 Cal. Rptr. 3d 618, 71 Cal. Comp. Cases 1299, when WCAB found that, based on agreed medical evaluator's clear and persuasive opinion, applicant's "multiple chemical sensitivity" alone caused permanent total disability even without considering permanent disability caused by her other industrial injuries, and that there was no evidence that abilities affected by applicant's "multiple chemical sensitivity," which precluded her from working outside her home, including her transient emotional reactions, inability to concentrate, memory difficulty, fatigability, and muscle achiness, were affected in any way by her pre-existing neck and back permanent disability.
Jose Garcia v. W.C.A.B., Living Opportunities Management Company, State Compensation Insurance Fund
75 Cal. Comp. Cases ***, 2010 Cal. Wrk. Comp. LEXIS 41
Penalties--Delay in Paying Settlement--WCAB held that defendants timely paid settlement proceeds to applicant and denied applicant's request for penalties for unreasonable delay under Lab. C. § 5814, when WCAB found that parties agreed to C&R resolving applicant janitor's 7/5/2004 industrial spine injury, that Order Approving C&R was issued on 7/12/2006, that pursuant to that Order applicant's attorney mailed it to parties on 7/16/2006, that defendant insurer received Order on 7/18/2006 and issued and mailed settlement checks on 8/17/2006 (30th day after 7/18/2006), that there was no evidence that settlement checks were not immediately negotiable, that C&R contained General Provisions Addendum, which stated that "Any claims for penalties and interest are waived if this agreement is paid on or before the thirtieth (30th) day following the date of receipt of the Order Approving Compromise and Release by defendant," that this provision constituted express waiver of penalties if defendant paid settlement within 30 days after receiving Order, that mailing settlement checks within 30 days after receiving Order was timely payment, and that, contrary to applicant's contention, it was not required for applicant to receive settlement checks within 30 days after defendant received Order, under Lab. C. § 4651(a) or otherwise.
La Verne Kelly-Lusk v. W.C.A.B., Delta Air Lines, Inc., ACE USA, administered by ESIS
75 Cal. Comp. Cases ***, 2010 Cal. Wrk. Comp. LEXIS 42
Statute of Limitations--WCAB held that applicant airline flight attendant's claim for cumulative trauma injury AOE/COE in period from 3/26/73 through 4/5/93 was barred by statute of limitations, when WCAB found that (1) applicant claimed injury to her internal and neurologic systems and psyche from exposure to chemicals on defendant airline, (2) applicant's date of injury under Lab. C. §§ 5412 and 3208.1 for statute of limitations purposes was 6/18/2002, date when applicant's treating physician issued medical report indicating that applicant believed her medical conditions were related to exposure while working for defendant airline and earliest date by which WCAB found that applicant knew or should have known of compensable disability and industrial causation of her medical conditions, (3) applicant testified that two treating physicians told her that her physical problems were related to her work as flight attendant (treating physicians in 2002 and 2004, including physician who wrote 6/18/2002 report), (4) applicant sent defendant letter on 12/7/2004 and attached 2004 report from treating physician, (5) applicant filed her application for adjudication of claim for this cumulative trauma injury on 10/1/2007, and (6) application for adjudication of claim was not filed within one year of date of applicant's knowledge of her compensable and industrially caused disability.
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