Worker’s Pre-existing Diabetes Not to Blame for Post-Injury Amputation: Cal. Comp. Cases December Advanced Postings (11/23/2011)

Featured Case of the Week: Worker’s Pre-existing Diabetes Not to Blame for Post-Injury Amputation

Bridgestone Firestone, Old Republic Insurance Company, Petitioners v. Workers' Compensation Appeals Board, Ronald Fussell (aka Ronald Fussel), Respondents, 2011 Cal. Wrk. Comp. LEXIS 179

Permanent Disability—Apportionment—Non-industrial Factors—WCAB held that applicant/territory manager incurred 100-percent permanent disability as result of industrial left ankle injury, and that there was no basis for apportionment of disability to applicant’s pre-existing diabetes under Labor Code § 4663, when (1) applicant underwent two failed ankle surgeries following his industrial injury and was subsequently required to wear ankle brace recommended by his treating physician to stabilize injured ankle, (2) panel qualified medical evaluator, upon whose opinion WCAB relied, concluded that “ill-advised” usage of ankle brace caused pressure ulcerations on applicant’s ankle and progressed to polyneuropathy and Charcot joint, eventually necessitating below-the-knee amputation, and (3) WCAB found no substantial medical evidence to establish that normal progression of applicant’s diabetes would have, without industrial injury, resulted in Charcot joint and below-the-knee amputation so as to justify apportionment, especially given medical evidence indicating that applicant’s diabetic condition was being appropriately managed and that applicant had no history of ankle trauma prior to his industrial injury and its sequelae.

Permanent Disability—Employees Refusal of Medical Treatment—WCAB held that apportionment of applicant/territory manager’s 100-percent permanent disability following industrial injury and below-the-knee amputation was not justified under Labor Code §§ 4056 and 5705(d) on basis that applicant unreasonably refused recommended medical treatment, when (1) WCAB found, based on substantial medical evidence, that necessity for applicant’s below-the-knee amputation and consequential permanent total disability resulted from pressure ulcerations, polyneuropathy and Charcot joint caused by applicant’s use of ankle brace following two failed ankle surgeries related to his industrial injury, (2) treating physician’s opinion that 40 percent of applicant’s permanent disability was apportionable to “non-industrial, non-compliance with activities of daily living” was not supported by facts or medical evidence, (3) although applicant did not always use wheelchair he was provided, applicant did not act unreasonably in using cane or crutches to avoid weight-bearing on his ankle when wheelchair was not accessible, and (4) defendant failed to present any evidence that applicant acted unreasonably or refused recommended medical treatment.

Permanent Disability—Cost of Living Adjustments—WCAB held that applicant/territory manager who suffered 100 percent permanent disability as result of industrial injury was entitled to cost of living adjustments beginning 1/1/2004, with jurisdiction reserved, and that there was no legal authority for defendant’s contention that, pursuant to Labor Code § 4659(c), cost of living adjustment should apply effective 1/1/2007 when applicant reached permanent and stationary status and was entitled to permanent disability benefits.

Attorney's Fees—Calculation—WCAB awarded applicant’s attorney fees in sum of $220,624.67 pursuant 8 Cal. Code Reg. § 10775 and guidelines in WCAB Policy and Procedure Manual Index § 1.140, to be commuted horizontally by reducing applicant’s future weekly permanent total disability payments.

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Here’s the rest of the first batch of advanced postings for the December 2011 issue of Cal. Comp. Cases. Lexis.com subscribers can link to the complete headnotes and summaries.

City of Anaheim, PSI, Petitioner v. Workers' Compensation Appeals Board, James B. Ott, Respondents, 2011 Cal. Wrk. Comp. LEXIS 181

Attorney's Fees—Commutation—Calculation of Fee—WCAB held that WCJ’s award of 4.7 percent state average weekly wage adjustment was reasonable, but deferred issues related to…

Velgrace Smith, Petitioner v. Workers' Compensation Appeals Board, Kern County Superior Court, Respondents, Petitioner v. Workers' Compensation Appeals Board, Kern County Superior Court, Respondents, 2011 Cal. Wrk. Comp. LEXIS 183

Permanent Disability—Offers of Regular, Modified, or Alternative Work—Adjustments in Compensation—WCAB rescinded WCJ's finding that applicant/legal process clerk with industrial injuries to left shoulder, bilateral wrists, and psyche was entitled to 15-percent increase in permanent disability indemnity pursuant to Labor Code § 4658(d)(2), when WCJ's award was based on literal reading of Labor Code §§ 4658(d)(2) and 4658(d)(3)(A) and his finding that defendant's offer of modified work was not timely because it was made more than 60 days after agreed medical evaluator's first proposed permanent and stationary date, but WCAB found that …

Consolidated Disposal Service, ACE USA, administered by Cannon Cochran Management Services, Inc., Petitioner v. Workers' Compensation Appeals Board, Efrain Cazares, Respondents, 2011 Cal. Wrk. Comp. LEXIS 182

Petitions for Writ of Review—Dismissal—Final Orders—Court of Appeal dismissed petition for writ of review appealing decision of WCAB that was not final order as required by Labor Code §§ 5901 and 5906 and case law, which ordered further development of record on…

TIG Insurance Company, aka TIG Specialty Insurance Company, administered by Risk Enterprise Management, Ltd., insurer for Almaden Mazda, Petitioner v. Workers' Compensation Appeals Board, Donald Davis, Respondents, 2011 Cal. Wrk. Comp. LEXIS 184

Medical Treatment—Utilization Review—WCAB awarded applicant medical treatment in form of in-home spa trainer with treadmill for walking (Therma Spa Trainer) for admitted industrial injury to applicant’s cervical spine that occurred on 10/17/1989, when WCAB found that …

California Insurance Guarantee Association, on behalf of Reliance Insurance Company, insurer for Remedy Temp, Petitioner v. Workers' Compensation Appeals Board, The Wherehouse, American Home Assurance Company, administered by Chartis, (Gloria Alfred), Respondents, 2011 Cal. Wrk. Comp. LEXIS 180

California Insurance Guarantee Association—General and Special Employers—Other Insurance—WCAB held that applicant was employee of Remedy Temp at time of her admitted injury AOE/COE on 1/23/2001 to both upper extremities, lower extremities, hips, shoulders, spine, internal organs, and psyche, when WCAB found that …