Workers' Compensation

Recent Noteworthy Panel Decisions Issued by California WCAB (Posted 8/6/2008)

The following are some recent noteworthy panel decisions issued by the California Workers' Compensation Appeals Board. If you would like a copy of any of these decisions, please logon and post a comment to this blog with your request. If you haven't registered at this site yet, you must do so before you can logon to post a comment. If you have any problems with registration or posting a comment, please email me at

Olga A. Saldana v. 3M Espe. Liens—Interpreting Services—WCAB held that injured employees are entitled to cost of interpreter services at medical treatment appointments as a "cost" under Labor Code § 4600, when such services are reasonable and necessary, that prior authorization for interpreter services, although preferred practice, is not a prerequisite to allowing cost, and that Spanish-speaking applicant with injuries to her bilateral wrist, right shoulder and right knee during period 1/20/2003 to 7/20/2003 was entitled to cost of interpreter services at medical treatment appointments since treating physician required or recommended such services.

Denver Clawson v. Pier One Imports. Attorney's Fees—Enforcement of Award—WCAB granted reconsideration on its own motion and rescinded WCJ's award of attorney's fees under Labor Code § 5814.5 in case where applicant did not seek Labor Code § 5814 penalties for defendant's delay in providing medical treatment, holding that Labor Code § 5814.5 attorney's fees may not be awarded when there has been no penalty imposed under Labor Code § 5814.

Dwayne Bahnsen v. FCI Constructors, Inc. Discovery—Employment Records—WCAB denied defendant's request for removal from WCJ's order granting applicant's motion to quash defendant's subpoena deuces tecum seeking applicant's employment records/personnel file to determine whether applicant with 7/14/99 pelvis, bladder, spine and lower extremity injuries needed medical treatment due to a new work injury, when WCAB found that defendant's request for applicant's personnel records, which are otherwise confidential, did not constitute a reasonable discovery request to determine applicant's medical needs, that defendant showed no compelling need for information in applicant's personnel records or that information in these records was material to issue of applicant's medical needs, that opinion of applicant's treating physician as to applicant's need for medical treatment would provide a basis for further inquiry, and that defendant failed to show that desired information could not be obtained by less intrusive means.

William Bishop v. IGC Polycold Systems. Injury AOE/COE—Employer's Liability for Benefits—Non-Industrial Injuries Caused by Employer Provided Medical Treatment—WCAB held that, although applicant with industrial injuries to left shoulder on 3/3/99 and during period 3/3/98 to 3/3/99 did not sustain industrial injury to his right shoulder, defendant was liable for benefits, including temporary disability and medical treatment, due to applicant as a result of injury incurred by applicant while undergoing right shoulder surgery authorized by defendant, when WCAB found that there was a connection between applicant's employment and his temporary disability stemming from right shoulder surgery since defendant provided surgery because of its liability for industrially-related left shoulder treatment, defendant failed to adequately evaluate applicant's right shoulder condition, and defendant's provision of right shoulder surgery created a reasonable expectation by applicant that defendant would be liable for all benefits resulting from the treatment; alternatively, WCAB held that applicant's right shoulder injury was compensable consequence of industrial injury.

Lisa Burke v. Winterland Productions.  Average Weekly Wage Determinations—Board and Lodging—WCAB held that reimbursed expenses for lodging, gas and food should not be included when calculating earnings and adjusting temporary disability rate of applicant with 8/10/99 right ankle injury, cumulative trauma to her right ankle, psyche and left hip through 4/20/99, and cumulative trauma to her bilateral ears through 8/10/99, based on its finding that Labor Code § 4454 requires inclusion of board, lodging and fuel in wage calculation only when these are part of employee's remuneration and, in this case, lodging, fuel and food were not part of applicant's remuneration, because applicant was simply repaid for expenses that she incurred while performing work for her employer, reimbursement of these expenses provided no bargained for economic advantage to applicant, and when applicant ceased working expenses associated with her travel ceased.

Jose Esparza v. City of Los Angeles . Petitions to Reopen—New and Further Disability—Apportionment—WCAB held that apportionment pursuant to Brodie v. W.C.A.B. (2007) 40 Cal. 4th 1313, 57 Cal. Rptr. 3d 644, 156 P.3d 1110, 72 Cal. Comp. Cases 565, does not apply to award of new and further disability after reopening pursuant to Labor Code § 5410, that correct procedure is to issue award for total percentage of permanent disability due to applicant's industrial injury and allow defendant credit for payments made under prior award, and that Brodie is distinguished because petition to reopen, as in present case, does not involve new injury.

Rudolph Moreno v. City of Santa Barbara . Medical Treatment—Utilization Review—Time to Deny Treatment Request—WCAB held that defendant failed to timely deny applicant's request for medical treatment related to his 2/20/2002 left leg injury, notwithstanding that defendant issued a delay notice requesting further information from treating physician and such information was not provided, when defendant did not issue utilization review denial letter until 15 days after initial request for treatment authorization, one day after 14-day time limit set forth in 8 Cal. Code Reg.  § 9792.9(b)(2).

Chester Williamson v. Radnor Holdings dba Wincup. Temporary Disability—Two-Year Limitation on Temporary Disability Indemnity—Amputations—WCAB relied on decision in Cruz v. Mercedes-Benz of San Francisco (2007) 72 Cal. Comp. Cases 1281 (Appeals Board en banc opinion) to hold that hip replacement surgery with femoral head removal did not constitute "amputation" under Labor Code § 4656(c)(2)(C) for purposes of extending 104 week limitation on temporary disability indemnity set forth in Labor Code § 4656(c)(1), even though part of  leg bone was removed during surgery, and that  applicant with 5/11/2005 injuries to left hip, lower extremity and back was not entitled to more than 104  weeks of  temporary disability indemnity. 

Rebecca Betancourt v. Checkmate Staffing Services. Uninsured Employers Benefits Trust Fund—WCAB dismissed Uninsured Employers Benefits Trust Fund (UEBTF) as a party defendant in case involving general and special employers, when there was no scenario under which UEBTF would have liability for applicant's 11/19/2003 injury pursuant to  Labor Code § 3716 and Symmar, Inc. v. W.C.A.B. (1982) 135 Cal. App. 3d 65, 185 Cal. Rptr. 67, 47 Cal. Comp. Cases 847, even if general employer were found to be illegally uninsured, since special employer had coverage on date of applicant's injury and WCAB found joint and several liability between general and special employers.  

Francisco Chapa v. Gibson Overseas, Inc. Liens—Medical Treatment—Outpatient Surgery Centers—Licensure and Accreditation Requirements—WCAB held that there was insufficient evidence to support WCJ's order disallowing lien claimant/outpatient surgery center's lien for 2001 services provided to applicant with 3/21/2001 back injury in connection with three epidural injections and facet blocks based on her finding that lien claimant failed to comply with proper licensure and fictitious name requirements, and remanded matter for further development of record, when lien claimant's  licensure status on date services were rendered was unclear because DHS  "surgical clinic" license submitted by lien claimant as evidence of proper licensure as an "outpatient setting" under Health and Safety Code § 1248.1 was issued to "Dr. Rosen" and not directly to surgery center,  and additional evidence regarding lien claimant's business form and true name on date of services was needed to ascertain whether lien claimant was required to file a "fictitious name" statement.