California: 25 Noteworthy Panel Decisions That You Should Know About

The following list contains our picks for the top "noteworthy" panel decisions issued by the California Workers' Compensation Appeals Board for 2011. Lexis.com subscribers can link to the panel decisions below.

Reminder: Practitioners should check the subsequent history of a panel decision before citing to it. Our list is current as of 11/3/2011.

1. Rochelle Gladden (Deceased) v. State of California, Department of Corrections & Rehabilitation, Parole and Community Services Division, 2011 Cal. Wrk. Comp. P.D. LEXIS 365
Death Benefits--Dependency--Domestic Partners--WCAB, denying reconsideration and affirming its prior decision [See Gladden v. State of California, Department of Corrections & Rehabilitation, 2011 Cal. Wrk. Comp. P.D. LEXIS 214],  held that WCJ incorrectly concluded that, pursuant to Labor Code § 3501(b), party in interest was domestic partner and dependent "surviving spouse" of applicant/parole agent who died on 1/9/2009 as a result of a stroke suffered on 3/4/2008 and that she was not entitled to conclusive presumption of total dependency on that basis, when party in interest was not applicant's registered domestic partner as required and defined by Family Code § 297 and protections provided to "domestic partners" under Family Code § 297.5, requiring that they be treated same as a spouse, only apply if partners are registered as domestic partners pursuant to California law; WCAB found that, based on evidentiary record, applicant and party in interest were good faith members of the same household within meaning of Labor Code § 3503, and that party in interest was dependent on applicant before applicant incurred her industrial injury, and returned matter to WCJ to determine extent of party in interest's dependency and her entitlement to benefits; WCAB found that party in interest did not establish that she should be considered decedent's "putative domestic partner" and that, although there were no cases defining "putative domestic partner," based upon cases cited by party in interest the definition would encompass requirement that a person claiming to be a "putative domestic partner" would need to show a good faith belief that he/she was in a valid legally recognized domestic partnership with deceased, which in turn would require a showing of a good faith belief that he/she was in a valid registered domestic partnership as described in Family Code § 297.

2. Donald Vadnais v. Kraft Foods Nabisco, PSI, 2011 Cal. Wrk. Comp. P.D. LEXIS 254
Sanctions--WCAB, which had granted defendant's petition for reconsideration   [see WCAB panel decision dated May 27, 2011], issued its decision after reconsideration in case involving applicant/merchandiser with 2/19/2002 left knee injury and injury to shoulders during cumulative period ending 2/11/2001, and ordered sanctions of $500.00 under Labor Code § 5813 against defendant and defense counsel for filing a petition for reconsideration of an award of credit seeking to correct WCJ's three-cent clerical error, when WCAB found that defendant had no reasonable justification for seeking correction of such an insignificant clerical error, that parties could have sought correction of clerical error directly from WCJ without filing a petition which resulted in a waste of judicial resources, that defendant failed to show how it was aggrieved by three-cent error, and that defendant did not seek timely correction of clerical error after receiving MOH/SOE showing error.

3. Delmar Green v. State Roofing Systems, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 216
California Insurance Guarantee Association--Covered Claims--Assignment of Liens--WCAB, granting removal, rescinded WCJ's Order Quashing Subpoena Duces Tecum issued by CIGA to lien assignee and held that CIGA was entitled to discover contract documents pertaining to validity of assignment of medical provider's lien to lien representative so as to obtain evidence regarding whether claim asserted by assignee was a "covered claim" pursuant to Insurance Code section 1063.1 (c)(9)(B) for which CIGA has liability.

4. Olusegun Afolayan (Dec'd.) v. State of California CDCR, California Rehabilitation Center, 2011 Cal. Wrk. Comp. P.D. LEXIS 147
Death Benefits--Special Death Benefits for Dependents of Public Employees--WCAB upheld WCJ's finding and its prior decision [see Afolayan  v. State of California CDCR, PSI, 2010 Cal. Wrk. Comp. P.D. LEXIS 614] that three totally dependent children of deceased injured worker were entitled to dependency benefits pursuant to Labor Code § 4704, that children were not  precluded from receiving benefits based upon widow's receipt of special death benefit provided by Public Employees' Retirement System (PERS) under Labor Code § 4707(a), that each of three children was entitled to one-third ($ 23,333.33) of total benefit of $ 70,000.00, and that WCJ's award was within WCAB's expansive authority under Labor Code § 4704 to "reassign the death benefit to any one or more of the dependents in accordance with their respective needs and in a just and equitable manner."

5. Dann Shubin v. Southwest Airlines, PSI, 2011 Cal. Wrk. Comp. P.D. LEXIS 342
(Subsequent History: Petition for Writ of Review Denied sub nom. Shubin v. WCAB, 10/5/2011, Civ. No. B235212, see 2011 Cal. Wrk. Comp. LEXIS 166. Petition for Review Filed 10/13/2011, Case No. S197167.)

Injury AOE/COE--Going and Coming Rule--WCAB, reversing WCJ, held that applicant's claims for 8/1/2007 injuries to his head, back, shoulders, and upper and lower extremities, was barred by "going and coming" rule, when injuries were incurred in a motor vehicle accident while applicant, who lived in Pasadena and was employed as a pilot for Southwest Airlines, was traveling from his domicile airport  in Oakland to a friend's home after being released from duty for a scheduled, uncompensated nine hour "reserve rest period," and WCAB found that applicant's release from duty at his domicile airport constituted the end of his regular work day, that commercial traveler exception to "going and coming" rule was not applicable because applicant was no longer engaged in travel for his employment once he arrived his domicile airport and was released from duty, that applicant was not on a special mission for his employer at time of accident, and that there were no applicable exceptions to "going and coming" rule under facts of this case because applicant chose to make Oakland his domicile airport even though he did not live in the area, applicant was required to find his own accommodations during nine hour rest period, and any unique or special circumstances was for applicant's own convenience rather than that of his employer.  

6. Melissa J. Munson (Deceased) v. City of Los Angeles Police Department, 2011 Cal. Wrk. Comp. P.D. LEXIS 387
Attorney's  Fees-Calculation-WCAB, affirming WCJ's finding that applicant's attorney was entitled to a fee equaling 10 percent of value of lifetime award of death benefits to decedent/police officer's mentally incapacitated young adult son, rejected applicant's attorney's position that he was entitled to a 13.7 percent fee based upon above average complexity of case, and that fee should have been calculated on present value of dependent son's award, which assumed a 4.7 percent annual COLA/SAWW increase, when WCAB found that (1) "reasonable" attorney's fee under Labor Code § 4906(d) should not be based strictly on present value of benefits awarded, as guidelines for determining reasonable fee set forth WCAB's Policy and Procedure Manual section 1.140, as incorporated by 8 Cal. Code Reg. § 10775, contemplate consideration of multiple factors to determine fee, including time expended, care exercised, responsibility assumed, and results obtained,  (2) applicant's attorney's calculation of present value of lifetime award was unreliable because he incorrectly assumed that, as with PTD benefits, COLA for death benefits payable at TD rate would continue throughout dependent's life, when in fact they do not continue indefinitely but are capped at two-thirds of injured employee's average weekly earnings at time of injury, (3) there was no basis for assumption that annual SAWW increase would be 4.7 percent, as SAWW has almost uniformly been less than 4.7 percent over eight years from 2004 through 2011, (4) there was insufficient evidence presented regarding time expended by applicant's attorney on applicant's case, and (5) WCAB could not conclude that WCJ erred in finding that case did not meet criteria for above average complexity so as to justify an attorney's fee greater than $150,436.74 (10 percent of $1,504,367.40 death benefit award) awarded by WCJ.

7. Phone Senenoi v. Nor Cal Metal Fabricators, 2011 Cal. Wrk. Comp. P.D. LEXIS 49
Medical-Legal Procedure--Agreed Medical Evaluators--Failure to Complete Timely Evaluations--WCAB denied defendant's petition for removal and upheld WCJ's order denying applicant's petition to disqualify AME for failure to issue supplemental report within 60 days pursuant to 8 Cal. Code Reg. § 38(h), when WCAB found that applicant failed to show that she would suffer substantial prejudice or irreparable harm absent removal, that only express consequence of an AME's failure to issue a supplemental report within 60 days is that AME might not be reappointed as a QME by AD, and that remedy for a delinquent report under 8 Cal. Code Reg. § 38(a) is to request a QME replacement pursuant to 8 Cal. Code Reg. § 31.5 but not to terminate AME agreement.

8. Gwen Lloyd v. County of Alameda, 2011 Cal. Wrk. Comp. P.D. LEXIS 124
Medical-Legal Procedure--Qualified Medical Evaluators--Time to Submit Supplemental Reports--WCAB denied defendant's petition for removal from WCJ's order allowing a new panel of QMEs pursuant to 8 Cal. Code Reg. § 38(a) based upon panel QME's failure to render supplemental report in connection with applicant's 7/11/2009 injury to musculoskeletal and nervous systems within 60 days of the request as required under 8 Cal. Code Reg. § 38(h), when there was no explanation to justify delay, and WCAB found that public policy required a quick resolution of issues, thereby supporting issuance of a new QME panel.

9. Miguel Soto v. Pizza Hut/Yum! Brands, 2011 Cal. Wrk. Comp. P.D. LEXIS 139
Permanent Disability--Offers of Regular, Modified or Alternative Work--Increases/Decreases in Compensation--WCAB rescinded WCJ's finding that defendant did not offer work to applicant/store manager with 11/8/2005 industrial injuries to back, internal system and psyche within 60 days of his disability becoming permanent and stationary for purposes of receiving Labor Code § 4658(d)(3)(A) decrease in permanent disability payments, when WCJ's finding was based upon strict interpretation that 60 day statutory period began to run on date applicant was declared permanent and stationary, rather than date defendant received notice of applicant's permanent and stationary status, but WCAB held that in order for Labor Code §§ 4658(d)(2) and 4658(d)(3)(A) to have their intended effect, 60 day time periods must be construed to begin running from date defendant receives notice that an injured worker's disability is permanent and stationary, and not from permanent and stationary date that is opined by physician; WCAB returned matter to WCJ to apply proper construction to Labor Code §§ 4658(d) and also to consider whether offer of work made by defendant was "in form and manner prescribed by the administrative director" as required by statute, because copy of offer in evidence did not include preparer's signature.

10. Michael Graham v. Pepsi Bottling Group, 2011 Cal. Wrk. Comp. P.D. LEXIS 368
Permanent Disability--Rating--AMA Guides--WCAB affirmed WCJ's finding that applicant/vending machine installer/delivery person incurred 24 percent PD as a result of his 10/3/2008 back injury based upon panel QME's 7/28/2010 report in which panel QME rated applicant's impairment by analogizing to a Class 2 rating for hernia impairments found in Table 6-9 of AMA Guides to produce a 15 percent WPI, when WCAB found that (1) panel QME's 7/28/2010 report satisfied requirements in Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion) (Almaraz/Guzman II) and was consistent with principles in Blackledge v. Bank of America (2010) 75 Cal. Comp. Cases 613 (Appeals Board en banc opinion), delineating roles of physician, WCJ and DEU rater, (2) panel QME's 7/28/2010 report adequately explained rational for analogous rating, and rating accounted for injury's impact on activities of daily living, as opposed to work activities, as is required, (3) panel QME's analogy using DRE rating method as set forth in his 10/12/2009 and 11/1/2009 reports could not be relied upon because rating did not meet standards imposed by Almaraz/Guzman II, and (4) panel QME's 9/26/2010 supplemental report in which he used Table 15-9 to rate lumbar spine disabilities and concluded that using this Table produced 45 percent WPI did not constitute substantial evidence because panel QME did not adequately explain his opinion that Table 15-19 should be used rather than Table 6-9, and, according to holding in Almaraz/Guzman II, fact that a different rating method yields a higher rating should not be deciding factor in determining impairment.

11. Donna Denys-Peck v. Sonora Surgery Center & Preferred Employers Insurance, 2011 Cal. Wrk. Comp. P.D. LEXIS 315
Medical-Legal Procedure--Panel Qualified Medical Evaluators--Subsequent Evaluations--WCAB affirmed WCJ's finding that applicant/sterilization technician who filed claims for injuries to her cervical spine, left hand, fingers, left thumb, left upper extremity, and left shoulder on 6/6/2007 (later amended to include bilateral knees) and during cumulative period 6/2/2006 to 6/2/2007, was entitled  to select a new panel QME to evaluate her cumulative injury pursuant to procedure applicable to represented employees set forth in Labor Code § 4062.2, and was not required to return to panel QME who had previously evaluated her while unrepresented for specific injury pursuant to Labor Code § 4062.1, when WCAB found that (2) process for obtaining a QME panel when an employee is represented is governed Labor Code § 4062.2 as opposed to Labor Code § 4062.1, which governs process in cases of unrepresented employee, (2) by plain language of statute, an evaluation in applicant's cumulative injury claim, filed after applicant became represented, must necessarily occur and be received under Labor Code § 4062.2, (3) although applicant would have been prevented under Labor Code § 4062.1(e) from obtaining a new panel QME for evaluation of her specific injury, Labor Code § 4062.2(e), precluding additional evaluations  under Labor Code § 4062.2, did not apply to applicant's cumulative injury claim because applicant never received an evaluation for cumulative injury, and (4) Labor Code § 4062.3(j), requiring employee to return to same QME if possible to evaluate any new medical issue, did not apply, as this statute refers to new medical issues and not separate claims of injury.

12. Anastasia Jenkins v. Next Enterprises, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 33
(Subsequent History: Petition for Writ of Review Filed 3/10/2011 sub nom. CIGA v. WCAB (Jenkins), Civ. No. B231491.)

California Insurance Guarantee Association--Covered Claims--Assignees--WCAB affirmed WCJ's award in favor of lien claimants who provided medical services to applicant/manager with industrial injury to his neck, back, shoulder and upper extremities during cumulative trauma period ending in 12/2001, and found that Insurance Code § 1063.1(c)(9)(B), excluding claims of assignees from CIGA's coverage, did not preclude CIGA's liability for liens on basis that lien claimants "assigned" their liens to Pinnacle Lien Services for collection, when record showed that Pinnacle did not fit legal definition of "assignee" of lien claims within meaning of Insurance Code § 1063.1(c)(9)(B), as CIGA failed to carry its burden of proving that legal title to lien claims was transferred to Pinnacle by lien claimants, Pinnacle was not pursuing recovery of liens in its own name but only acted as lien claimants' representative for purposes of collection, and WCAB found that use of word "assigned" in representation agreements between Pinnacle and lien claimants did not establish that lien claimants intended to transfer legal title to their lien claims to Pinnacle.

13. Ronald Fryer v. Cornucopia Community Market, 2011 Cal. Wrk. Comp. P.D. LEXIS 272
Sanctions--WCAB affirmed WCJ's finding that defendant engaged in sanctionable conduct under Labor Code § 5813 and 8 Cal. Code Reg. § 10561 by willfully violating WCJ's order that  applicant/produce clerk with 1/2/97 admitted spine injury be authorized to treat outside defendant's MPN, by attempting to transfer applicant's care back into MPN, and by failure to pay two self-procured medical bills as ordered, but exercised its discretion to reduce WCJ's imposition of four $ 2,500.00 sanctions for separate violations to a total sanction of $ 2,500.00; in imposing sanctions, WCAB acknowledged defendant's contentions that it was not acting frivolously or in bad faith when it acted on its belief that it had a right to transfer applicant's care into its MPN if it followed proper notice procedures pursuant to Babbit v. Ow Jing (2007) 72 Cal. Comp. Cases 70 (Appeals Board en banc opinion), and that WCJ's order was unlawful because defendant was entitled to transfer applicant's medical care to MPN by perfecting notice to applicant, but found that WCJ's order was not ambiguous in stating that defendant lost its right to insist that applicant be treated within MPN, and that by allowing WCJ's order to become final, having filed no petition for reconsideration, defendant was obligated to comply with order.

14. Carmen Santangelo v. Newport-Mesa Unified School District, PSI', 2011 Cal. Wrk. Comp. P.D. LEXIS 190
Sanctions--WCAB found that defendant and its counsel were entitled to recover costs and attorney's fees from lien claimant and lien claimant's hearing representative, jointly and severally, and that hearing representative was liable for sanctions pursuant to Labor Code § 5813 and 8 Cal. Code Regs. § 10561 for bad faith actions including filing of frivolous pleadings and missed appearances, but reduced WCJ's award of $ 46,891.38 in costs and fees by $ 2,721.57 for a total fee award of $ 44,169.81, and reduced sanctions against hearing representative from $ 3,500.00 to $ 1,000, when it found that $ 500 sanction awarded by WCJ for frivolous petition for removal following compromise and release was not warranted, and when it exercised its discretion not to impose sanctions for hearing representative's ex parte appearances before defendant school board, notwithstanding that it found appearances to be inappropriate and inconsistent with good faith representative of lien claimant.

15. Lena Wilson v. Piedmont Lumber & Mill Company, 2011 Cal. Wrk. Comp. P.D. LEXIS 196
Attorney's Fees--Calculation--Permanent Total Disability Award--WCAB, granting reconsideration, rescinded WCJ's fee awarded to attorney for applicant/gardener   who incurred permanent total disability as a result of 5/7/2005 injury to lumbar spine and remanded issue for further proceedings, when WCAB found that (1) WCJ should have awarded a 15 percent rather than 12 percent fee pursuant to Labor Code § 4906(d) and WCAB Policy and Procedure Manual section 1.140 because case was of above average complexity, (2) prior to determining reasonable attorney's fee based on 15 percent calculation, it is necessary for WCJ to re-calculate present value of applicant's permanent total disability indemnity award to account for COLAs that applicant may reasonably be expected to receive under Labor Code § 4659(c) during her anticipated life, using either a 4.7 percent future COLA (which WCAB did not assume to be correct absent other evidence), or whatever average future COLA the DEU rater deems appropriate, and to issue and serve three alternative present value calculations using three possible start dates (1/1/2004, first January 1 after date of injury, and first January 1 after permanent total disability or life pension payments start) if Supreme Court's decision in Duncan v. W.C.A.B. (2009) 179 Cal. App. 4th 1009, 102 Cal. Rptr. 3d 331, 74 Cal. Comp. Cases 1427 is not yet issued, (3) WCJ may award attorney's fee based on lowest present value calculation, reserving jurisdiction to later increase fee if Supreme Court's decision in Duncan so warrants, (4) reasonable attorney's fee in a 100 percent permanent disability case with COLA is not limited to what a fee would be in a 99-3/4 percent permanent disability case of similar difficulty and time expenditure, but should not be based strictly on permanent total disability award's present value, with COLA increase (5) in determining a reasonable fee in a 100 percent permanent disability case WCJ must consider responsibility assumed, care exercised, time expended and results obtained by attorney pursuant to Labor Code § 4906(d), as well as attorney's fee guidelines regarding complexity of case and attorney's efforts in helping applicant obtain temporary disability and or/medical costs in addition to 100 percent permanent disability and is not required to allow a fee based strictly on a fixed percentage of 621.25 weeks of permanent partial disability, and (6) WCJ should consider actuarial present value of injured employee's lifetime permanent total disability award at temporary total disability indemnity rates, including an average COLA under Labor Code § 4659(c), if warranted.

16. Eduardo Elias v. Saticoy Lemon Association, PSI, 2011 Cal. Wrk. Comp. P.D. LEXIS 269
Discovery--Closure--WCAB's Duty to Develop Record--WCAB, granting defendant's petition for removal from WCJ's Order finding good cause to develop record  issue of CT injury, returned matter to WCJ to decide case on existing record, when applicant/general laborer alleged cumulative injury to his bilateral upper extremities, back and bilateral lower extremities during period 1/1/90 through 9/9/2009, WCJ found that applicant sustained his burden of proving CT injury to his back and elbow but that record was not complete and needed to be developed "on issue of whether applicant sustained an industrial cumulative trauma injury," and WCAB concluded that WCJ's order prejudiced defendant so as to justify removal, that discovery had closed pursuant to Labor Code § 5502(d)(3) and there was no good cause to reopen discovery as there was no showing that there was evidence applicant could not have discovered or obtained in the exercise of due diligence prior to closure of discovery, that requirements of Labor Code § 5502(d) cannot be circumvented by WCAB's power to develop record, and that by ordering parties to obtain a job analysis and supplement the medical record with additional opinion from applicant's treating physician as well as an opinion from a physician who had never before evaluated applicant, WCJ was essentially doing applicant's attorney's job.

17. Cynthia Siegert v. Cottage Health Systems, PSI, 2011 Cal. Wrk. Comp. P.D. LEXIS 300
Permanent Disability--Rating--Diminished Future Earning Capacity--WCAB affirmed WCJ's finding that applicant/registered nurse incurred 45 percent PD as a result of 6/29/2006 injury to her lumbar spine, and that applicant did not meet burden of rebutting scheduled DFEC factor Ogilvie v. City and County of San Francisco (2009) 74 Cal. Comp. Cases 248 (Appeals Board en banc opinion) (Ogilvie I) and Ogilvie v. City and County of San Francisco (2009) 74 Cal. Comp. Cases 1127 (Appeals Board en banc opinion) (Ogilvie II), because opinion of applicant's vocational expert did not constitute substantial evidence as it was based upon applicant's conflicting testimony regarding her loss of earnings, and applicant's testimony that she searched for jobs but could find none within her restrictions, by itself, was insufficient to rebut DFEC portion of 2005 Schedule.

Permanent Disability--Rating--AMA Guides--WCAB affirmed WCJ's finding that applicant/registered nurse incurred 45 percent PD as a result of 6/29/2006 injury to her lumbar spine, and that AME's opinion was sufficient to rebut scheduled  impairment rating pursuant to Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion) (Almaraz II) and Milpitas Unified School Dist. v. W.C.A.B. (Guzman) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837, when AME set forth facts and reasoning to justify his opinion that applicant was in DRE Category V of AMA Guides, at top of 25 to 28 percent WPI, because she had instability in her lumbar spine and numbness in her thigh, AME's assessment of 28 percent WPI was supported by his clinical and sensory exams as well as his clinical judgment, and AME's WPI assessment was within four corners of AMA Guides.

Permanent Disability--Offers of Regular, Modified or Alternative Employment--Increase/Decrease in Compensation--WCAB, affirming WCJ, held that applicant/registered nurse who was awarded 45 percent PD as a result of 6/29/2006 injury to her lumbar spine, was not entitled to 15 percent increase in PD award pursuant to Labor Code § 4658(d)(2) nor was defendant entitled to a 15 percent decrease in PD award pursuant to Labor Code § 4658(d)(3)(A), when, although defendant did not offer applicant regular, modified, or alternative work, it was unclear whether applicant was able to return to any type of work with defendant, even had an offer been made, based upon applicant's testimony that she had relocated due to her husband's job transfer, and evidence that applicant never responded to defendant's notice of its intent to terminate her employment unless notified by applicant of an intent to return to work.

18. Terry Scudder v. Verizon California, Inc., PSI, 2011 Cal. Wrk. Comp. P.D. LEXIS 138 (also see 2011 Cal. Wrk. Comp. P.D. LEXIS 299)
(Subsequent History: Petition for Writ of Review Denied 8/3/2011 sub nom. Scudder v. WCAB, Civ. No. B232862, see 76 Cal. Comp. Cases 1035. Untimely Petition for Review lodged; Supreme Court denied application for relief from default 9/2/2011.)

Medical Treatment--Employees Right to Control--Admissibility of Medical Reports From Provider Outside MPN--WCAB, rescinding WCJ's finding, held that medical reports issued in connection with applicant/cable splicer's 2/14/2006 injuries to  left knee, low back and in form of deep vein thrombosis, upon which WCJ relied in making award, were inadmissible when reports were issued by physicians outside defendant's MPN who WCAB found were invalidly designated by applicant's counsel as treating physicians, because (1) since defendant had an MPN applicant had no right under Labor Code § 4600(c) to change his treatment from prior treating physician pre-designated under Labor Code § 4600(d) to physician outside MPN more than 30 days after he reported his injury, (2) although applicant was entitled to medically appropriate referrals outside MPN by his pre-designated physician, referral to physician subsequently designated by counsel was not appropriate under Labor Code § 4600(d), (3) to extent 8 Cal. Code Reg. § 9780.1(d) contradicts language in Labor Code § 4600(d)(6), rule is invalid, and (4) WCAB determined that doctors appointed by counsel were not treating physicians pursuant to Labor Code §§ 4061, 4062 and 4062.2 and, therefore, their reports were improperly admitted into evidence and relied upon by WCJ.

19. Sarahi Cubedo v. Leemar Enterprises, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 356
Temporary Disability--Return to Work--Immigration Status--WCAB rescinded WCJ's award of TTD to applicant/cashier with 6/24/2009 admitted industrial spinal injury and returned matter to WCJ for  further proceedings, when there was conflicting evidence as to whether applicant was an undocumented worker during periods of TPD, and WCAB found that if defendant made a legitimate offer of modified work that applicant could not accept solely due to her residency status, defendant was not alternatively liable for TTD pursuant to holding in Del Taco v. W.C.A.B. (2000) 79 Cal. App. 4th 1437, 94 Cal. Rptr. 2d 825, 65 Cal. Comp. Cases 342

20. Gregory Willis v. Waste Management, 2011 Cal. Wrk. Comp. P.D. LEXIS - (free access here)
Medical Treatment--Utilization Review--WCAB rescinded WCJ's finding that applicant/driver/garbage collector who incurred admitted industrial right knee injury and alleged left knee injury during period 2/3/2010 to 2/3/2011, was entitled to right knee arthroscopy chondroplasty as proposed by treating physician, and remanded matter to trial level to allow applicant opportunity to pursue Labor Code § 4062 process to challenge defendant's UR denial of surgical procedure, when WCAB held that, although an injured worker who does not object to a UR decision denying authorization for requested medical treatment may choose not to invoke Labor Code §§ 4062.1 or 4062.2 dispute resolution provisions and may accept UR decision, Labor Code § 4610(g)(3)(A) requires that an injured worker's objection to a UR denial of authorization of requested medical treatment be resolved under Labor Code § 4062, which in turn requires that medical evaluation be conducted as described in Labor Code §§ 4062.1 or 4062.2, depending upon whether or not worker is represented, and that applicant in this case, who was represented, did not follow Labor Code § 4062 process as required and instead improperly proceeded directly to an expedited hearing to challenge defendant's UR denial.

21. Barbara Edwards v. Caltrans, 2011 Cal. Wrk. Comp. P.D. LEXIS - (free access here)
(Subsequent History: Defendant filed a Petition for Reconsideration of the WCAB's decision on 10/20/11)

Permanent Disability--Rating--Total Disability--WCAB rescinded WCJ's finding that applicant with traumatic brain injury was entitled to award of 88 percent PD, after apportionment, based upon recommended rating, and held that applicant was entitled to an award of 100 percent PD without apportionment, when both AME and WCJ determined that applicant was totally precluded from open labor market, WCAB  stated that cases of presumptive PTD under Labor Code § 4662 may be treated differently than cases in which there is a finding of PPD (up to 99.75%) under Labor Code § 4660, as evidenced by fact that there are separate sections for computing disability payments in cases of partial disability (Labor Code § 4658(d)) and total disability (Labor Code § 4659(b)), that WCJ's finding of PPD was not supported by substantial evidence, and that there was no basis for apportionment to non-industrial, pre-existing condition because applicant's industrial brain injury, with dementia, was by itself totally disabling.

22. Cruz Villegas (Deceased), Amalia Villegas (Widow), Applicant v. Trojan Battery Company, United States Fire Insurance c/o Crum & Forster, Defendants, 2011 Cal. Wrk. Comp. P.D. LEXIS 141
Death Benefits--Time to Deny Claim--Presumption of Compensability--WCAB reversed WCJ's finding that widow's claim for death benefits stemming from her husband's 11/27/2008 industrially-related death was presumed compensable under Labor § 5402(b) for defendant's failure deny death claim within requisite 90-day period, when defendant had   timely denied decedent's inter vivos claim for benefits, and WCAB found that timely denial of decedent's inter vivos claim was sufficient for purposes of denying death claim and that a separate denial of death claim was not required.

23. Maria Andrade, Applicant v. Diamond Contract Services, Defendant, 2011 Cal. Wrk. Comp. P.D. LEXIS 99
Discovery--Examination by Vocational Expert--WCAB granted defendant's request for removal from WCJ's Order denying defendant's petition to compel applicant/janitor with industrial injury to her spine and knees on 5/24/2002 and from 12/2000 through 5/24/2002 to appear for evaluation by a vocational expert, rescinded WCJ's Order, and directed applicant to appear for examination by defendant's vocational expert based upon principle of fundamental fairness and on Labor Code §§ 4050 and 5703.5, which permit defendant to require an employee to submit to a medical evaluation and WCAB to direct an unrepresented employee to be examined by QME and, while not expressly authorizing evaluation by a vocational expert, do not expressly prohibit it.

24. Jose Oliveira, Applicant v. River Front Apartments, Illinois Midwest Insurance Agency on behalf of Pennsylvania Manufacturers' Association Insurance Company, Defendants, 2011 Cal. Wrk. Comp. P.D. LEXIS 133
(Subsequent History: Petition for Writ of Review Denied sub nom. Oliveira v. Riverfront Apts., Civ. No. H036791, 9/29/201, see 76 Cal. Comp. Cases 1099).

Permanent Disability--Rating--AMA Guides--WCAB affirmed WCJ's finding that applicant/maintenance worker suffered 39 percent permanent disability as a result of 6/8/2007 industrial injury to his left shoulder based upon opinion of panel QME, when WCAB found that opinion of panel QME was sufficient to rebut scheduled AMA Guides rating for shoulder impairment under Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion) (Almaraz II) and Milpitas Unified School Dist. v. W.C.A.B. (Guzman) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837 because panel QME provided clear rationale for applying hernia chapter of AMA Guides, rather than upper extremity chapter based on loss of range of motion for purposes of analyzing applicant's WPI, and preclusion from heavy lifting used by panel QME seemed to most accurately describe applicant's impairment.

25. Jose Chirinos, Applicant v. Heartwood Cabinet, Majestic Insurance Company, Defendants, 2011 Cal. Wrk. Comp. P.D. LEXIS - (free access here)
Contribution Proceedings--Medical Reports of Non-examining Physicians--Admissibility--WCAB held that Arbitrator did not err in relying upon opinion of panel QME to find that only 30 percent of applicant/carpenter/laborer's benefits were attributable to CT during period 1/22/2007 through 1/22/2008, for which Majestic Insurance was liable in contribution, with remainder arising from an 8/2/2006 specific injury, and that applicant's failure to submit to physical examination by panel QME did not render reports inadmissible, when WCAB found that although ordinarily only reports of examining/attending physicians are admissible, admission of these reports into evidence in contribution proceeding is consistent with statutory scheme created by Labor Code §§ 4062, 4062.2 and  5500.5(e), that under circumstances presented here, where applicant refused to submit to examination for purposes of contribution proceeding, a medical report based upon a review of applicant's medical records could constitute substantial evidence to support a final determination on contribution between insurers, and that Arbitrator reasonably found that opinion of panel QME was substantial medical evidence to support 70/30 apportionment between carriers who had coverage on applicant's date of injury.

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