California Workers' Compensation Cases Roundup 10/7/2010

California Workers' Compensation Cases Roundup 10/7/2010

CALIFORNIA COMPENSATION CASES

Vol. 75, No. 9

September 2010

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

Appellate Court Compensation Case

Ford Construction Co. v. W.C.A.B. (Newell) (3rd--C061176) 75 Cal. Comp. Cases 953

Serious and Willful Misconduct by Employers--Evidence--Court of Appeal, annulling decision of WCAB, held that evidence did not support WCAB's finding that defendant employer, in violation of Lab C Sec 4553, engaged in serious and willful misconduct that was proximate cause of accident that killed decedent employee, when Court of Appeal found that decedent and coworker were attempting to place large ripper shank into tool pocket of bulldozer, using chain, grab hook, and pry bars, when ripper shank fell, killing decedent, that employer commits willful misconduct when employer "turns his mind" to fact that injury to employees will probably result from employer's acts or omissions but nevertheless deliberately fails to take appropriate measures for their safety, that many witnesses testified that method employed by decedent and coworker was acceptable method of installing ripper shank, that witnesses also testified that this method had never before caused injuries to employees, and that evidence did not support WCAB's assertion that defendant employer knew that this method was dangerous and knew that probable consequence would involve serious injuries to its employees

Serious and Willful Misconduct by Employers--Evidence--Court of Appeal held that evidence did not support WCAB's finding that defendant employer, in violation of Lab C Sec 4553.1, engaged in serious and willful misconduct that was proximate cause of accident that killed decedent employee, when Court of Appeal found that employer did not violate Cal/OSHA Safety Order 5002, which protects employees from standing directly beneath suspended loads, since evidence indicated that neither decedent nor coworker stood underneath ripper shank

Appellate Court Cases Not Originating With Appeals Board

Kaplan v. Reiner (2nd--B220426) 75 Cal. Comp. Cases 967

Civil Actions Between Attorneys--Order Prohibiting Harassment--Court of Appeal affirmed trial court's order prohibiting harassment by defendant against plaintiff under CCP Sec 527.6, when Court of Appeal found that plaintiff and defendant each represented party in workers' comp proceedings, that defendant's conduct, including yelling, using profanities, and degrading, demeaning, and threatening plaintiff, occurred in course of two WCAB hearings while serving subpoena at plaintiff's office, that defendant's conduct resulted in plaintiff fearing for her safety and removing herself as counsel on cases on which defendant was opposing counsel, that evidence supported trial court's order, that trial court was not prejudiced against defendant, and that defendant's conduct was not constitutionally protected activity

Tapia v. Dresden (3rd--C061925) 75 Cal. Comp. Cases 973

Civil Actions Against Employers--Exclusive Remedy Rule--Exceptions--Court of Appeal held that workers' comp was not plaintiffs' exclusive remedy related to plaintiff Tapia's injury from fall off roof of property owned by defendants, when Court of Appeal found that defendants hired Ungas to repair roof on their property, that Ungas hired plaintiffs Tapia and his brother to perform this work, that, while working on roof, Tapia fell 25 feet to concrete sidewalk, sustaining serious injuries, that plaintiffs (Tapia, his brother, and his wife) brought civil action against property owners, that trial court erred in sustaining defendants' demurrer on ground that workers' comp benefits were plaintiffs' exclusive remedy for Tapia's negligence cause of action for failure to provide him with approved safety system, for Tapia's wife's cause of action for loss of consortium, and for Tapia's brother's cause of action for intentional infliction of emotional distress from witnessing Tapia's fall, that exclusive remedy rule did not apply to these three causes of action because (1) Ungas did not have valid or current state contractor's license to repair roof and, thus, under Lab C Sec 2750.5, Ungas and Tapia were both employees of property owners, not independent contractors, and (2) defendants did not have workers' comp insurance so Tapia could bring tort civil action against them pursuant to Lab C Sec 3706, as exception to exclusive remedy rule, and that, additionally, trial court erred in sustaining defendants' demurrer to brother's cause of action for negligent infliction of emotional distress when defendants contended that this cause of action was based on direct victim theory, when cause of action was actually based on bystander theory

Torretta v. Naltsas (2nd--B219421) 75 Cal. Comp. Cases 984

Third Party Actions--Medical Malpractice--Statute of Limitations--Court of Appeal, affirming trial court's grant of summary judgment in defendant's favor, affirmed trial court's holdings that plaintiff knew or should have known at least by 6/28/2007, from information given to him by QME in his workers' comp claim, that avascular necrosis condition in his left hip was possibly caused by corticosteroid injections given to him by defendant physician/dermatologist, that plaintiff's civil complaint against defendant for medical malpractice should have been filed by 6/28/2008, and that complaint filed on 7/29/2008 was barred by statute of limitations of CCP Sec 340.5, when Court of Appeal found that plaintiff was diagnosed with psoriasis in 1998 and began treatment for psoriasis with defendant in 2005, that defendant gave him corticosteroid injections (Kenalog) from 2006 through 8/2007, that plaintiff suffered industrial injury on 2/14/2007 when he dropped eight feet to ground, landed awkwardly, and felt shooting pain in his left hip, groin, and leg, that plaintiff filed workers' comp claim related to this injury, that in 5/2007 plaintiff was diagnosed with non-industrial bilateral avascular necrosis of hips, that it was undisputed that QME told plaintiff that there could be possible connection between his steroid injections and his avascular necrosis, that plaintiff testified that, when he left QME's office on date of evaluation (6/28/2007), he understood that injections caused his avascular necrosis, that, therefore, he had enough information to know possible connection between defendant's injections and his avascular necrosis, and that there was no triable issue of fact on when he discovered or should have discovered this possible connection

Federal Circuit Court Opinion of Related Interest

Delia v. City of Rialto (9th Cir.--09-55514) 75 Cal. Comp. Cases 992

Fourth Amendment to U.S. Constitution--Unreasonable Searches and Seizures--U.S. Court of Appeals, Ninth Circuit, affirming in part and reversing in part summary judgment in favor of defendants granted by U.S. District Court, Central District of California, and remanding case to that court, held that Fourth Amendment rights of employee/firefighter were violated when defendants fire chief and battalion chiefs conducted warrantless, unreasonable, compelled search of employee's home by ordering him, under threat of sanctions if employee refused, to go into his home and bring out rolls of recently-purchased insulation for inspection, when Court of Appeals found that employee had been issued series of off-duty work orders by treating physician after he began to feel ill while working to control toxic spill, that none of these work orders placed any activity restrictions on employee, that defendant/employer undertook investigation of employee's possible abuse of sick leave, that employee, while subject to off-duty work orders, was filmed buying building supplies, including several rolls of fiberglass building insulation, at home improvement store, and that search here was unjustified from start because there were no reasonable grounds for believing that search for insulation was necessary for investigation for abuse of sick leave since no activity restrictions were ever placed on employee by treating physician

Fourth Amendment to U.S. Constitution--Unreasonable Searches and Seizures--Qualified Immunity--Clearly Established Right--U.S. Court of Appeals, Ninth Circuit, affirming trial court's grant of summary judgment in favor of defendants fire chief and battalion chiefs, held that employee did not demonstrate that constitutional right was clearly established, such that defendants would have known that their actions were unlawful, as of date of order that employee, under threat of sanctions if he refused, go into his home and bring out rolls of recently-purchased insulation for inspection, when Court of Appeals found that whether right is clearly established turns on objective legal reasonableness of action, assessed in light of legal rules that were clearly established at time it was taken, that contours of right must be sufficiently clear that reasonable official would understand that what he or she was doing violated that right, and that employee bore burden of demonstrating that right allegedly violated was clearly established at time of incident

Fourth Amendment to U.S. Constitution--Unreasonable Searches and Seizures--Qualified Immunity--Private Parties--U.S. Court of Appeals, Ninth Circuit, reversing trial court's grant of summary judgment in favor of defendant private attorney and remanding case, held that attorney, as private party hired by defendant employer to participate in employer's investigation of employee, was not entitled to qualified immunity for alleged violation of employee's right to be free of unreasonable searches and seizures

Fourth Amendment to U.S. Constitution--Unreasonable Searches and Seizures--Qualified Immunity--Municipalities--U.S. Court of Appeals, Ninth Circuit, affirming trial court's grant of summary judgment in favor of defendant municipality, which employed defendants fire chief and battalion chiefs, held that municipality could not be held liable for those defendants' actions in violation of employee's constitutional rights, when Court of Appeals found that defendant employees had not acted pursuant to expressly adopted official policy or longstanding municipal practice or custom, that defendant fire chief's written order that employee produce insulation for inspection was not order of "final policymaker" for municipality's fire department, since, pursuant to municipality's Code of Ordinances, city council was vested with exclusive final policymaking authority for fire department, and that no other legal grounds existed for finding municipality liable for defendant employees' actions

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Melissa C. Brown, Hon. Joel K. Harter, James T. Ponzio, and Hon. Ralph Zamudio recommended the following writ denied cases for summarization in this issue.

Bank of America v. W.C.A.B. (Quijano) (2nd--B224110) 75 Cal. Comp. Cases 1012

Injury AOE/COE--Social Activities--WCAB affirmed WCJ's finding that death of employee caused by allergic reaction to peanut eaten at company party was compensable, notwithstanding that employer did not plan or organize party, when party was organized by employees to honor departing colleague, party occurred on company premises during normal working hours, party was attended by decedent at time that he was being paid, and, although employer did not endorse party, employer did allow party to occur

Bustamante v. W.C.A.B. (2nd--B222576) 75 Cal. Comp. Cases 1015

C&Rs--Credit for PD Advances--WCAB held that employer properly complied with order approving C&R and denied applicant's request for penalties and attorney's fees related to defendant's claimed failure to comply, when WCAB found that applicant sustained injury AOE/COE to neck and bilateral upper extremities and in form of headaches, that WCAB had approved stipulations with request for award that included award for 83-percent PPD and award for attorney's fee of $15,245 to be commuted from final weekly payments of PPD, that parties subsequently negotiated C&R with credit for PD advances, that it was clear that advances included PD advances made to applicant and attorney's fees commuted from far end of PPD payments, that C&R erroneously listed PD paid by listing only PD advances made to applicant but not attorney's fees that defendant paid out of PD benefits, that parties agreed that defense counsel would submit order approving C&R, that defense counsel added language to order approving C&R, i.e., "/permanent disability paid on prior stipulated award," which already stated "less credit for permanent disability advances," that defense counsel's addition of this language was not inappropriate modification of C&R, that order approving C&R correctly listed PD advances, that WCAB approved order approving C&R, and that defendant made payments as listed in order approving C&R

County of Sonoma v. W.C.A.B. (Fifer) (1st--A128935) 75 Cal. Comp. Cases 1018

Medical Treatment--Spinal Surgery--WCAB affirmed WCJ's finding that defendant was liable for providing spinal surgery to applicant with cervical/thoracic spine injury, notwithstanding AME's opinion that applicant's need for spinal surgery was unrelated to her industrial injury, when defendant failed to properly or timely comply with 8 CCR Sec 9788.1 or 9788.11 in objecting to treating physician's request for authorization to perform surgery as required under Lab C Sec 4062(b), Cervantes v. El Aguila Food Products, Inc. and Elliott v. W.C.A.B., and AME's opinion regarding non-industrial causation of applicant's need for surgery was not considered because it was obtained outside 45-day period in Lab C Sec 4062(b)

Kimball v. W.C.A.B. (2nd--B223595) 75 Cal. Comp. Cases 1022

TD--Amount of Benefit--WCAB held that applicant/registered nurse with specific and cumulative trauma injuries to her right shoulder, neck, hands, psychological system, and temporomandibular joints was entitled to increased TD in accordance with Lab C Sec 4661.5, based on statutory TD average weekly earnings in effect on date when each TD indemnity payment was made, but that applicant was not entitled to increased TD as result of raise in her salary that took effect under her union contract prior to date TD payments were finally made but over three years after applicant was declared P&S

Sanctions--WCAB held that defendant was not liable for sanctions pursuant to Lab C Sec 5813 for failure to timely disclose payroll records in connection with dispute over applicant's earnings, when WCAB found that defendant did not wilfully withhold records to cause unnecessary delay, that there was no evidence that defendant acted in bad faith or that its behavior was frivolous, that defendant's actions resulted  from excusable neglect, and that applicant made no attempt to mitigate dispute by disclosing her earnings

Porras v. W.C.A.B. (2nd--B222782) 75 Cal. Comp. Cases 1028

Injury AOE/COE--Burden of Proof--WCAB, rescinding WCJ's decision in opinion by majority of panel, held that applicant/production worker failed to prove by preponderance of evidence that he suffered injury AOE/COE in form of nasopharyngeal cancer during period 1979 through 9/30/98, when, although it was undisputed that applicant was exposed to known carcinogens during his employment, upon weighing conflicting medical opinions, WCAB found insufficient medical evidence to establish causal link between applicant's exposure and his cancer

Sedgwick Claims Management Services, Inc. v. W.C.A.B. (Manguiat) (1st--A129102) 75 Cal. Comp. Cases 1037

Psychiatric Injuries--Good Faith Personnel Actions--WCAB held that defendant failed to meet burden of proving that applicant/deputy sheriff's psychiatric injury "was substantially caused by a lawful, nondiscriminatory, good faith personnel action" so as to bar applicant's claim for compensation under Lab C Sec 3208.3(h), when applicant alleged that his injury was caused by his distress over failing to prevent prisoner from escaping while in his custody, and WCAB found that QME's report relied on by defendant was insufficient to establish that injury was "substantially caused" by applicant's impending job transfer because (1) QME used term primary cause to describe effect of applicant's impending job transfer on his psychiatric condition, rather than using statutory language "substantial" cause, (2) QME exceeded his role as medical evaluator by expressing legal conclusions regarding whether defendant's actions constituted good faith personnel actions, and (3) QME, in his last report, stated that applicant's potential job transfer to more difficult job could not cause psychological injury, indicating that there was no industrial injury at all as defined in Lab C Sec 3208.3(a)

Stafford v. W.C.A.B. (2nd--B225947) 75 Cal. Comp. Cases 1040

Psychiatric Injuries--Good Faith Personnel Actions--Suicide--WCAB, upholding its prior decision, held that decedent/armed guard's industrially-related suicide was not compensable under Lab C Sec 3208.3(h) because employer's investigation of decedent regarding alleged theft constituted regular, objectively reasonable and routine personnel decision made and carried out in good faith based on totality of circumstances as described in Northrop Grumman Corp. v. W.C.A.B. (Graves) and City of Oakland v. W.C.A.B. (Gullet), when WCAB found that two-hour interrogation of decedent by employer's security investigator was in accordance with nature of employer's armored transportation business and seriousness of investigation, that employer was entitled to investigate theft, and that employer's conduct was not outrageous, unlawful, intentionally misleading, or deceitful, and was undertaken with honesty and sincerity of purpose

Target Stores v. W.C.A.B. (Martinez) (6th--H035306) 75 Cal. Comp. Cases 1043

PD--Application of 1997 Schedule for Rating Permanent Disabilities--WCAB panel majority affirmed WCJ's finding that 1997 Schedule for Rating Permanent Disabilities applied to rate PD stemming from applicant/stock person/merchandise handler's 1998 and 6/21/2002 low back and psyche injuries, when WCAB found that applicant's period of TD from 8/25/2002 through 10/5/2002 triggered defendant's duty to provide applicant with Lab C Sec 4061 notice regarding payment of PD prior to 1/1/2005, thereby creating exception to application of 2005 Permanent Disability Rating Schedule under Lab C Sec 4660(d), and that defendant's failure to meet its obligation to pay TD benefits did not justify its failure to provide required notice, notwithstanding that there was no final payment of TD indemnity prior to 1/1/2005

TD--Period of Disability--WCAB upheld WCJ's finding that applicant/stock person/merchandise handler with industrial injuries to her neck, low back, right arm, right shoulder, and psyche on 2/21/2007, and to her low back and psyche in 1998 and on 6/21/2002, suffered period of TD from 8/25/2002 through 10/5/2002, when WCAB found that medical evidence established that applicant was temporarily disabled as result of her injury during this period, that defendant did not offer applicant modified work within her restrictions, that applicant's manager would not allow applicant to return to work, based on her physical condition, and that record did not support defendant's claim that applicant was off work during this period solely for personal reasons unrelated to her industrial injury

Yeressian v. W.C.A.B. (2nd--B222870) 75 Cal. Comp. Cases 1048

WCAB Procedure--Vexatious Litigants--Pre-Filing Orders--WCAB upheld Presiding WCJ's order declaring applicant to be vexatious litigant pursuant to 8 CCR Sec 10782 and pre-filing order requiring applicant to obtain authorization from WCAB before filing any documents, when applicant persistently filed pleadings disputing issues previously litigated to final decision, as well as  pleadings and declarations of readiness requesting WCAB to take actions contrary to law, procedurally inappropriate, or outside WCAB's  jurisdiction; having declared applicant vexatious litigant, WCAB explained that applicant may still obtain WCAB's assistance in resolving legitimate legal disputes

Other WCAB Decisions Denied Judicial Review

Kent Anderson v. W.C.A.B. (2nd--B222582) 75 Cal. Comp. Cases 1052

Medical Provider Networks--Transfer of Care--Notice Requirements--WCAB affirmed WCJ's finding that defendant was not barred by doctrine of res judicata from litigating issue of whether it properly transferred applicant/order selector's medical care for back injury into its MPN pursuant to 8 CCR Secs 9767(g), 9767.9, and 9767.10, notwithstanding prior finding by WCJ that applicant could self-procure treatment outside MPN because defendant did not provide proper notice of MPN under 8 CCR Sec 9767.12, when first trial involved issue of notice and subsequent trial involved transfer of care, which applicant did not dispute

Lita Bond v. W.C.A.B. (1st--A128863) 75 Cal. Comp. Cases 1054

Permanent Disability--Rating--Apportionment--WCAB awarded applicant court services analyst 50-percent PPD, after adjustment for age and occupation and without apportionment, for applicant's injury AOE/COE to low back, both knees, and right ankle, based on opinions from AME, when WCAB found that all of AME's reports taken as whole were substantial evidence and should be given great weight, that applicant did not show why AME's opinions should not be followed, that AME indicated that applicant was limited to light work and precluded from prolonged sitting, that parties agreed that AME's reports rated 55-percent standard PPD (50 percent PPD after adjustment for age and occupation), that WCAB, on rating applicant's PD, was not required to rely on opinions from applicant's primary treating physician when opinions from AME were substantial evidence, and that AME's opinions apportioning 20 percent of applicant's PD to pre-existing condition (non-industrial degenerative disc disease) did not meet requirements of Escobedo case because AME did not explain how or why disc disease was causing applicant's current PD

Hamid Khazaeli v. W.C.A.B. (1st-- A129432) 75 Cal. Comp. Cases 1056

Petitions for Writ of Review--Court of Appeal denied petition for writ of review for following reasons: petition was not verified, as required by California Rules of Court, rule 8.486(a)(4), petition did not include minutes of WCAB hearing, as required by California Rules of Court, rule 8.495(a)(1)(B), WCAB order being reviewed is missing three pages (all pages of order being appealed are required by California Rules of Court, rule 8.495(a)(1)(A)), and WCAB's decision, which denied reconsideration and dismissed removal related to WCJ's order granting defense counsel's request to be relieved from representing employer because of breakdown in communication between counsel and employer, was not final order under Lab C Sec 5950

Los Angeles Metropolitan Transportation Authority v. W.C.A.B. (Rayford) (2nd--B221668) 75 Cal. Comp. Cases 1058

Compromise and Release Agreements--Deductions--Permanent Disability Advances--WCAB held that language of C&R of applicant's claims for industrial injuries meant that applicant was to receive $250,000, minus $40,000 for attorney's fees, with no deduction for PD advances made by defendant before date of approval of C&R, but with deduction for further PD advances defendant made on or after that date, when WCAB found that defendant prepared C&R that included language "Leaving a balance of $210,000.00, after deducting the amounts set forth above and less further permanent disability advances made after the date set forth above ... ," that C&R did not contain any listing of PD advances made before date of approval, that only "amounts set forth above" was $40,000 for attorney's fees, that C&R did not specify any "date set forth above," that both first version and second/approved version of C&R did not list PD advances made before date of approval of C&R, that parties used approved C&R form 7, that parties'  form 7 did not list specific amount of prior PD advances or mention date related to PD advances, that applicant and applicant's attorney testified that they understood that agreement was for new money, minus attorney's fees, with no deduction for prior PD advances, that Lab C Sec 5003 and 8 CCR Sec 10874 required that C&R specify amounts paid to date of settlement, period of payment, amounts due thereafter, and attachment of approved form 7 listing PD advances, and that reasonable "date set forth above" in C&R was date of approval of C&R

Methodist Hospital v. W.C.A.B. (McLone) (2nd--B223847) 75 Cal. Comp. Cases 1060

Permanent Disability--Rating--Apportionment--WCAB awarded applicant 100-percent PTD, after adjustment for age and occupation and apportionment to cervical disability, for applicant registered nurse's injury AOE/COE to her cervical and lumbar spine, psyche, gastrointestinal system, and internal system (related to hypertension), based on opinions from AMEs in neurology/orthopedics and in psychiatry on extent of disability, opinions from AME in neurology/orthopedics that there should be 30-percent apportionment of cervical disability to non-industrial conditions, formal rating from DEU, and cross-examination of DEU rater

Temporary Total Disability--WCAB held that applicant was entitled to TTD from day after date of injury (3/7/95) through date her psychiatric hospitalization ended and psychiatric AME found that she was P&S from that injury (2/12/2004), with credit for intervals during that period when defendant paid benefits it identified as TTD benefits and as PD advances

Nichols v. W.C.A.B. (2nd--B222505) 75 Cal. Comp. Cases 1062

Penalty--Unreasonable Delay in Payment of Interest--WCAB held that defendant unreasonably delayed paying interest on award of retroactive TD and awarded 25-percent penalty on interest delayed pursuant to Lab C Sec 5814(a), when WCAB found that applicant sustained admitted cumulative trauma injury AOE/COE in period from 1979 to 12/7/2004 to multiple body parts from his work for defendant as enforcement supervisor, WCAB approved stipulations with request for award on 4/23/2009, which included defendant's agreement to pay applicant retroactive TD, defendant timely paid retroactive TD but did not timely pay interest on award pursuant to Lab C Sec 5800, parties stipulated that amount of interest delayed through date of trial was $134.58, Lab C Sec 5814, as amended 4/24/2004, applied to all dates of injury as of 6/1/2004, pursuant to that statute penalty was owed on actual amount delayed, not on entire species of benefits affected (here, TD), amount delayed was $134.58, and Lab C Sec 5814(a) allowed penalty up to 25 percent of amount delayed, at discretion of WCAB, and WCAB imposed penalty of $33.65, i.e., 25 percent of $134.58

Rucker v. W.C.A.B. (3rd--C065459) 75 Cal. Comp. Cases 1064

Qualified Medical Evaluator Reports--Time to Serve--WCAB held that panel QME's report was timely served and denied applicant's request to disqualify report and obtain new panel QME, when WCAB found that unrepresented applicant claimed injury AOE/COE to brain and psyche while working for defendant as county health services worker, that applicant saw panel QME on 7/28/2009, that Lab C Sec 139.2(j)(1)(A) and 8 CCR Sec 38(a) required panel QME to serve report within 30 days of evaluation or beginning of QME process, i.e., by 8/27/2009, that panel QME mailed report and billing on 8/26/2009, that defendant's date stamp indicated that defendant received report 8/27/2009, which was within 30 days of 7/28/2009, that applicant did not object that panel QME report was untimely before his claimed receipt of report on 9/16/2009, and that, alternatively, WCAB's order finding that panel QME report was timely was superseded by WCAB order approving C&R

Qualified Medical Evaluator Reports--WCAB held that there was no evidence that panel QME did not comply with requirements of 8  CCR Sec 36.5

Smith v. W.C.A.B. (3rd--C065361) 75 Cal. Comp. Cases 1066

Injury/Death AOE/COE--WCAB held, based on opinions from three QMEs, that deceased worker's death was not related to his industrial low back injury that occurred four years previously, when WCAB found that all treating and evaluating physicians indicated that death was from cardiovascular conditions, that one of three QMEs gave opinion that decedent's cardiovascular conditions and death were not work-related, that there was no medical opinion that decedent's cardiovascular conditions were related to previous injury, and that there was no showing that there was any compensable psychiatric consequence of previous injury that resulted in decedent's death

Swift Cor Tool Engineering v. W.C.A.B. (Garay) (2nd--B223584) 75 Cal. Comp. Cases 1067

Rehabilitation Unit Appeals--Time to File--WCAB held that defendant did not timely appeal RU determination to WCJ and that determination, ordering defendant to pay applicant retroactive VRMA related to applicant's cumulative trauma industrial injury, was, therefore, final order and remained in effect, when WCAB found that RU issued determination on 10/31/2008, that deadline to appeal determination was 11/20/2008, that under 8 CCR Sec 10955 appeal must be filed at WCAB office, not RU office, that only copy of appeal in WCAB file indicated that appeal was filed at RU office on 11/20/2008, that there was no evidence that appeal was received at WCAB office by 11/20/2008 as required by 8 CCR Sec 10390, and that defendant did not prove that it timely filed its appeal

Evidence--Admissibility--WCAB held that defendant did not show good cause to reopen record to admit evidence that defendant offered after MSC, i.e., declarations of two witnesses on issue of when and where defendant filed appeal of RU determination, that discovery closed at MSC pursuant to Lab C Sec 5502(e)(3), that defendant did not show why offered evidence was not available or could not have been discovered with due diligence before MSC, and that it was not error for WCAB to decline to develop record on issue of whether defendant's appeal was timely filed

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