Cal. Comp. Cases April Advanced Postings 3/31/2010

Cal. Comp. Cases April Advanced Postings 3/31/2010

Here’s the first advanced posting for the April 2010 issue of Cal. Comp. Cases. Lexis subscribers can link to the case below.

City of Anaheim, PSI, Petitioner v. Workers' Compensation Appeals Board, James B. Ott, Respondents

75 Cal. Comp. Cases ***, 2010 Cal. Wrk. Comp. LEXIS 33

Cumulative Trauma--Date of Injury--Single Injury--WCAB rescinded WCJ's finding that applicant/fire captain suffered cumulative trauma to his hearing, bilateral carpal tunnel, heart, right shoulder, low back, right foot, and pulmonary system during  period 7/97 through 1/18/2003 causing 96-percent permanent disability, and separate and distinct cumulative trauma in form of cancer during period 7/77 through 2/24/2004 causing 50-percent permanent disability, and held that applicant sustained only single period of cumulative trauma through 1/18/2003, his last day of work, causing 100-percent permanent disability, since applicant's injurious exposure for all of his industrial conditions, including his cancer, which manifested itself post-employment, ended on date he stopped working, and that there were no periods of injurious exposure separated by period of temporary disability or other circumstances that would support finding of two cumulative  injuries, since applicant worked without disability until his job ended.

Stipulations--Setting Aside--WCAB held that there was good cause to set aside parties' stipulations that applicant/fire captain suffered two separate cumulative trauma injuries, one to his hearing, bilateral carpal tunnel, heart, right shoulder, low back, right foot, and pulmonary system during  period 7/97 through 1/18/2003 and second in form of cancer during period 7/77 through 2/24/2004, and that 2005 Permanent Disability Rating Schedule and AMA Guides applied to rate disability caused by cancer, when stipulations were entered at time that separate industrial injuries were routinely combined into single award of permanent disability pursuant to Wilkinson v. W.C.A.B. (1977) 19 Cal.3d 491, 564 P.2d 848, 138 Cal. Rptr. 696, 42 Cal.Comp.Cases 406, apportionment law changed with enactment of SB 899 so that Wilkinson no longer routinely applies, new apportionment law requires that permanent disability be apportioned, based on causation, applicant's permanent disability here was caused by single period of injurious exposure and single injury, and WCAB found that any stipulation to use 2005 Permanent Disability Rating Schedule to rate permanent disability caused by injury incurred during cumulative trauma period ending 1/18/2003 was incorrect because defendant stopped paying temporary disability indemnity before 1/1/2005, requiring defendant to provide applicant with notice pursuant to Labor Code § 4061 and making 1997 Schedule for Rating Permanent Disabilities applicable under Labor Code § 4660(d).

Permanent Disability--Rating--WCAB, rescinding WCJ's finding, held that  applicant/fire captain suffered single cumulative trauma to his hearing, bilateral carpal tunnel, heart, right shoulder, low back, right foot, and pulmonary system, and in form of cancer during period of  his employment through 1/18/2003, and that, as rated under 1997 Schedule for Rating Permanent Disabilities and using Multiple Disabilities Table, injuries resulted in 100-percent permanent disability, based on effect of medications applicant used to treat his cancer combined with effects of his other injuries.

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