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California: 26 Noteworthy Panel Decisions You Should Know About (January-June 2012)

June 16, 2012 (25 min read)
Here are  the publisher's picks for the top noteworthy panel decisions recently reported in the LexisNexis services. The list is based upon feedback from our consultants about current topics and issues that are of interest to the entire workers’ compensation community.
Lexis.com subscribers can link to the noteworthy panel decisions cited below.
Reminder: Be sure to check the status of a case before citing to it.
© Copyright 2012 LexisNexis. All rights reserved.
California WCAB Noteworthy Panel Decisions Reporter
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ATTORNEY’S FEES/COLA
Miramontes v. Lions Raisins, 2012 Cal. Wrk. Comp. P.D. LEXIS 91
WCAB affirmed WCJ’s finding that $49,900 was a reasonable fee for efforts of applicant’s attorney through 12/31/2011, via commutation based on present value of applicant’s life pension (awarded for permanent total disability resulting from 5/30/2006 industrial injuries), plus 12 percent of any future weekly payments made to applicant with COLA increases after 1/1/2012, that commutation of unknown future COLAs would not be in applicant’s best interest and could result in inequity and undue hardship, and that it was not possible to base any commutation on substantial evidence in light of uncertainties involved in determining future COLAs. 
Wilson v. Piedmont Lumber and Nursery, 2012 Cal. Wrk. Comp. P.D. LEXIS 48
WCAB, rescinding WCJ’s award, held that $84,814.30 was a reasonable attorney’s fee for services provided to applicant, to be commuted from permanent total disability award using “uniformly increasing reduction method,” when WCJ’s award of $41,522.43 attorney’s fee based on DEU calculations, assumed a 0 percent COLA over life of applicant’s award under Labor Code § 4659(c), and WCAB found that (1) WCJ’s reliance on calculation which used 0 percent for COLA figure resulted in unreasonably low attorney’s fees which essentially ignored fact that applicant would be receiving a COLA, (2) use of 3 percent as assumed annual SAWW increase was reasonable in view of fifty year, thirty year, and five year SAWW increases, pursuant to factors set forth in Labor Code § 4906 and 8 Cal. Code Reg. § 10775, and given that 3 percent for SAWW placed risk that actual COLA would be greater than assumed COLA more on applicant’s attorney than on applicant, and (3) based upon use of 3 percent reduction in applicant’s weekly benefit rate, “uniformly increasing reduction method of commutation” was in applicant’s best interest.
CALIFORNIA INSURANCE GUARANTEE ASSOCIATION
Koch v. R.E. State Engineering, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 80, pet. for writ of review filed 3/16/2012
WCAB, affirming WCJ in a split panel opinion, held that applicant’s employer was entitled to pursue claim for reimbursement from CIGA for Longhsore and Harbor Workers’ Compensation Act (LHWCA) benefits that employer provided to applicant following 6/5/2000 industrial injury and insolvency of its carrier, when WCAB found that (1) CIGA’s liability for reimbursement was not precluded merely because applicant chose to pursue LHWCA benefits instead of benefits under California workers’ compensation law, (2) even though employer provided applicant with industrial injury benefits following carrier’s insolvency because it was required to do so by LHWCA, employer did not become an insurer for the purpose of being “other insurance” that was “available” to applicant within meaning of Insurance Code § 1063.1, and (3) employer’s claim for workers’ compensation benefits was a “covered claim” under Insurance Code § 1063.1 for which insolvent carrier would have been liable but for its insolvency and for which CIGA was liable because of insolvency.
COMMERCIAL TRAVELERS
Parvool v. Tony’s Food Service, 2012 Cal. Wrk. Comp. P.D. LEXIS 151
WCAB, rescinding WCJ’s finding, held that 7/5/2010 injuries sustained by applicant’s assistant to his neck, upper extremities, lower extremities, psyche, digestive system, and in form of sleep disorder were compensable pursuant to commercial traveler rule, when applicant, who was based in southern California but traveled extensively for his employer, was injured during a business trip to Hawaii when he dived head-first into shallow portion of swimming pool at his employer-provided hotel, and WCAB found that (1) applicant’s dive into pool “was clearly an act in the course of employment pursuant to the commercial traveler rule” because it was an activity reasonably necessary to employer’s comfort, rather than a purely personal errand, and it was reasonable for employer to expect applicant and his co-workers to use hotel swimming pool while in Hawaii, and (2) Labor Code § 3600(a)(9) (applicable to voluntary, off-duty social, recreational or athletic activities), as relied upon by WCJ, does not apply to situations encompassed by commercial traveler rule.
DEATH BENEFITS
Will v. State of California, Department of Forestry and Fire Protection, 2012 Cal. Wrk. Comp. P.D. LEXIS 164
WCAB, in a split opinion, affirmed WCJ’s finding that, after payment of $320,000.00 death benefit,  defendant was obligated pursuant to Labor Code § 4703.5(a) to pay continuation benefits to minor children of decedent/firefighter who suffered a fatal injury on 10/8/2007, when WCAB found that existence of “surviving totally dependent parent,” i.e. children’s mother, did not preclude award of continuation benefits under Labor Code § 4703.5(a), and that to the extent statutory language in Labor Code §§ 4703.5 (allowing for continuation benefits to minor children) and 3501 (defining totally dependent minor children) was ambiguous regarding whether minor children were entitled to continuation benefit, the rule of liberal construction in Labor Code § 3202 applied so as to favor construction of provisions with purpose of extending benefits, especially given that there was nothing in 2002 amendments of statutes to indicate a legislative intent to reduce continuation benefits to minor children based upon existence of “surviving totally dependent parent.”
Zavala v. Sonoma Compost Company LLC, 2012 Cal. Wrk. Comp. P.D. LEXIS 166
WCAB, granting reconsideration, held that grandson of  decedent who suffered fatal injury on 12/18/2009, did not qualify for continuing or augmented benefits through age 18 pursuant to Labor Code § 4703.5, because, although decedent’s grandson was a total dependent,  “grandchild” is not listed as a presumed total dependent in Labor Code § 3501(a) and grandchild’s mother appeared to be a “surviving totally dependent parent” as described in Labor Code § 3501(a).
LIENS FOR MEDICAL SERVICES
Ramirez v. Michael Morris, 2012 Cal. Wrk. Comp. P.D. LEXIS 40
WCAB held that WCJ did not err in disallowing lien for medical treatment rendered to applicant/newspaper carrier on basis that lien claimant failed to carry burden of proving that applicant suffered 12/10/2005 industrial injury to his back and legs, when WCAB found that where a lien claimant, rather than injured worker, litigates issue of entitlement to payment for industrially-related medical treatment, lien claimant stands in shoes of injured worker and must establish injury by a preponderance of evidence and, here, lien claimant failed to establish injury AOE/COE by preponderance of evidence; WCAB disallowed lien claimant’s claim for medical-legal expenses, which was not dependent on a finding of industrial injury, because medical-legal report upon which lien was based was excluded from evidence and lien claimant did not establish basis for allowance of medical-legal costs. 
Mota v. Allgreen Landscape, 2012 Cal. Wrk. Comp. P.D. LEXIS 34
WCAB, granting reconsideration, held that lien claimant/wife was entitled to recover reasonable value of home health care services that she provided to her husband/landscaper who suffered injuries to multiple body parts on 8/13/2001, when WCAB found that (1) defendant’s alleged lack of opportunity for utilization review (UR) of healthcare services did not bar lien claimant’s claim for reimbursement, (2) claim for reimbursement was not barred by Immigration Reform and Control Act of 1986 because lien claimant was never an employee of defendant, did not become defendant’s employee by rendering services to her husband, and had a lien against applicant’s compensation, not a claim on her own behalf, (3) substantial evidence from Agreed Medical Examiner supported need for LVN services for 16 to 18 hours per day, (4) and lien claimant’s lien filed in October of 2007 for services provided between 11/14/2001 through 8/31/2005, was not barred by Labor Code § 4903.5, notwithstanding that lien was filed more than five years after date of injury and more than six months after stipulated award was issued, because WCAB found nothing in Labor Code § 4903.5 barring reimbursement for services that have been continuously provided, such as those by lien claimant in this case, due to failure to meet one or both of earlier limitations on filing specified in statute.
MEDICAL LEGAL PROCEDURE
Ramirez v. Parking Concepts, 2012 Cal. Wrk. Comp. P.D. LEXIS 154
WCAB rescinded WCJ’s award of fees to attorney for applicant with 11/4/2005 psychiatric injury, when attorney’s fees were awarded as a sanction pursuant to Labor Code § 4062.3(g) for defendant’s improper ex parte communications with three different panel QMEs in the sum of $27,335.00, based upon 78.1 hours of work at rate of $350.00 per hour, and WCAB found that, although WCJ properly determined that defendant committed repeated violations of 8 Cal. Code Reg. § 35 and Labor Code §§ 4062.2 and 4062.3 so as to trigger attorney fee provision in Labor Code § 4062.3(g), record was insufficient to allow determination regarding reasonableness of amount of fee awarded because (1) entitlement to reimbursement under Labor Code § 4062.3(g) must be clearly established to be related to discovery arising out of need to obtain a new panel QME due to defendant’s ex parte communication, and (2) itemization provided by defendant did not, on its face, establish nexus between prohibited communication and “attorney’s fees for related discovery.”
Granados v. Barrett Business Services, PSI, 2012 Cal. Wrk. Comp. P.D. LEXIS 128
WCAB held that applicant/truck driver with 1/8/2010 industrial injuries to his hand, arm, wrist, upper extremity, psyche, and in forms of sleep disorder and headaches, incurred temporary disability from 5/16/2011 “to the present and continuing,” and that, in finding temporary disability, WCJ did not err in admitting into evidence and relying upon opinion of psychiatric panel Qualified Medical Evaluator even though panel Qualified Medical Evaluator’s report was not properly obtained pursuant to Labor Code § 4062, when defendant fully participated in selection of panel Qualified Medical Evaluator, requested panel Qualified Medical Evaluator to address numerous issues in her report, and allowed applicant to be examined by panel Qualified Medical Evaluator, but waited until after it received panel Qualified Medical Evaluator’s report to object to it, and WCAB found that, because defendant could not fairly object to a panel Qualified Medical Evaluator report after process has already been completed, defendant waived any objection to admissibility of report under doctrine of invited error. 
Berke v. Bloomingdales, 2012 Cal. Wrk. Comp. P.D. LEXIS 112
WCAB, granting applicant’s petition for removal in which applicant sought reversal of WCJ’s disqualification of panel QME, rescinded WCJ’s order disqualifying panel QME pursuant to Labor Code § 4062.3(f) and ordering replacement panel after panel QME called defense counsel’s office to request payment of his deposition fee prior to deposition, when WCAB found that  Labor Code § 4062.3(f) and 8 Cal. Code Reg. § 35(k) are expressly for protection of aggrieved party, i.e. party who did not have ex parte communication, and that although applicant in this case was aggrieved party she elected not to disqualify panel QME and proceed with a new panel QME. 
Hernandez v. All Waste Systems, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 132
WCAB affirmed WCJ’s finding that there was no good cause for applicant/truck driver with injuries to his back, head, lower extremities, foot, and psyche on 11/16/2005, and to his back, head, lower extremities and foot during period through 5/12/2008, to discontinue using original panel QME in connection with her specific and cumulative injuries and that defendant was not liable for costs of evaluation undertaken by replacement panel QME over defendant’s objection, when (1) applicant underwent a panel QME with regard to his 11/16/2005 specific injury pursuant to Labor Code § 4062.1 while still unrepresented, (2) subsequently, after becoming represented applicant returned to same panel QME for re-examination regarding applicant’s specific and cumulative injuries, (3) panel QME issued several supplemental reports as to both injuries, and (4) WCAB found that applicant was not entitled to additional evaluation by a different QME for her cumulative injury pursuant to Labor Code § 4062.2, and was required to return to original panel QME under  Labor Code § 4062.3(j).
Medina v. City of Huntington Park, 2012 Cal. Wrk. Comp. P.D. LEXIS 32
WCAB, denying defendant’s petition for removal, affirmed WCJ’s finding that defendant violated Labor Code § 4062.3(e) by writing Agreed Medical Examiner a lengthy letter five days before his evaluation of applicant with 12/17/2005 orthopedic injury, when WCAB found that letter was sent by defendant without applicant’s knowledge or consent and contained a number of factual assertions and questionable statements, that letter constituted an impermissible advocacy letter as contemplated in Ferniza v. Rent A Center, Inc., 2010 Cal. Wrk. Comp. P.D. LEXIS 624, because it contained “information” within meaning of Labor Code § 4062.3, that parties did not agree on information in letter being provided to Agreed Medical Examiner as required under Labor Code § 4062.3(c), and that there was no showing that defendant was substantially prejudiced or irreparably harmed by WCJ’s deferral of penalty or sanction issues regarding defendant’s conduct.
MEDICAL PROVIDER NETWORKS
Ochoa v. Bel Aire Window Coverings, 2012 Cal. Wrk. Comp. P.D. LEXIS 148
WCAB, affirming WCJ, held that defendant was not liable for medical treatment self-procured by applicant/sander outside defendant’s MPN, when WCAB found that (1) defendant’s initial failure to provide applicant with notice of its MPN did not result in a neglect or refusal to provide reasonable medical treatment so as to justify treatment outside MPN pursuant to Knight v. United Parcel Service (2006) 71 Cal. Comp. Cases 1423 (Appeals Board en banc opinion), because applicant had received treatment within MPN before MPN notice was sent, defects in providing MPN notice can be cured allowing a defendant to satisfy its obligation under Labor Code § 4600 to provide reasonable medical treatment through its MPN, and delay in serving injured worker with required MPN notice does not mean that a defendant is liable forever for costs of all self-procured treatment, and (2) lien claimant did not meet its burden of proving that durable medical equipment it claimed to have provided was medical treatment reasonably required to cure or relieve applicant from effects of her 9/21/2006 admitted injuries to her low back and other body parts. 
Clifton v. Sears Holding Corporation (KMart Corporation), 2012 Cal. Wrk. Comp. P.D. LEXIS 1
WCAB, granting reconsideration, held that WCJ erred in finding that defendant was liable for reimbursement of medical treatment self-procured by applicant/cashier with 12/20/2010 injuries to her left knee, left foot, and left ankle, when WCAB found that (1) applicant obtained unauthorized treatment outside defendant’s MPN without following proper procedures as set forth in Valdez v. Warehouse Demo Services (2011) 76 Cal. Comp. Cases 330 (Appeals Board en banc opinion) and Valdez v. Warehouse Demo Services (2011) 76 Cal. Comp. Cases 970 (Appeals Board en banc opinion), (2) WCJ made no specific finding that defendant failed to provide required notices or that defendant did not have a properly established MPN, and made no finding that any act or omission by defendant constituted a neglect or refusal to provide reasonable medical treatment, as necessary under Knight to justify an award of  reimbursement for self-procured treatment, (3) WCJ misinterpreted defendant’s burden of proof on establishment of MPN and improperly analyzed issue of MPN notice under Knight, and (4) WCJ failed to adequately explain basis for his finding that applicant was entitled to treatment outside MPN. 
PERMANENT DISABILITY
Dahl v. Contra Costa County, 2012 Cal. Wrk. Comp. P.D. LEXIS 173
Permanent Disability--Rating--Diminished Future Earning Capacity--WCAB rescinded WCJ's finding that applicant/medical records technician with industrial injuries to her neck and right shoulder during cumulative period ending 3/14/2005 incurred 59 percent permanent disability as calculated pursuant to 2005 Permanent Disability Rating Schedule, when WCJ’s permanent disability award was based on his finding that under Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, applicant could not rebut DFEC adjustment factor contained in 2005 Schedule by expert testimony unless it was shown that injury caused a total loss of future earning capacity and 100 percent permanent disability pursuant to analysis in LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, but WCAB held that (1) decision in Ogilvie does not preclude a finding of permanent disability that accounts for injury’s impairment of rehabilitation and its effect upon injured worker’s DFEC, and (2) application of a LeBoeuf type analysis in cases of partial permanent disability may be properly applied in cases such as this where employee has rebutted 2005 Schedule by showing that she will have a greater DFEC than reflected in scheduled rating, and that such analysis requires expert opinion on effect of injury’s impairment on worker’s amenability to rehabilitation and effect of that on DFEC.
Malhotra v. State of California, Department of Developmental Services, 2012 Cal. Wrk. Comp. P.D. LEXIS 143
WCAB, rescinding WCJ’s finding that applicant/lab tech assistant incurred 20 percent permanent disability as a result of 4/5/2006 industrial injury to his right small finger, held that WCJ’s permanent disability rating was impermissibly based upon grip loss because (1) Qualified Medical Evaluator’s opinion did not support departure from strict application of AMA Guides by including grip loss measurements as a factor of disability in light of limitation in section 16.8a of AMA Guides stating that grip loss can be used as a factor of disability only in “rare cases,” (2) although physician had “latitude” to assign WPI based upon grip loss, he did not do so, and instead used loss of range of motion to determine applicant’s WPI, and (3) WCJ did not have authority, in absence of medical opinion, to determine that applicant’s impairment should be based upon grip loss solely on basis of applicant’s pain symptoms and Qualified Medical Evaluator’s statement that applicant gave an honest effort in grip testing.
Duncan v. Coca Cola Enterprises, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 20
WCAB affirmed WCJ’s finding that applicant incurred permanent total disability as a result of his 3/3/2001 industrial injury, when substantial medical evidence, coupled with testimony of vocational experts, supported a finding that applicant was unemployable in open labor market due to medication usage. 
PROFESSIONAL ATHLETES
Jenkins v. Arizona Cardinals, 2012 Cal. Wrk. Comp. P.D. LEXIS 189
WCAB affirmed its prior decision [See Jenkins v. Arizona Cardinals, 2011 Cal. Wrk. Comp. P.D. LEXIS  485] determining that under Labor Code §§ 3600.5(a) and 5305 the WCAB did not have jurisdiction over applicant’s claim against the Arizona Rattlers for injuries to his neck, shoulders, elbows, wrists, hands, spine, knees and ankles while playing professional football, notwithstanding that applicant’s agent negotiated and signed contract for hire in California, when WCAB found that applicant had the ability to decline the contract negotiated by his agent if he did not want the job, that applicant’s signature on contract was not a mere condition subsequent that did not prevent formation of contract, and that when an employee has a right to entirely reject a written contract and does not unequivocally accept contract until signing it outside of California, then contract of hire is not made in California.
Booker v. Cincinnati Bengals, PSI, 2012 Cal. Wrk. Comp. P.D. LEXIS 114 , pet. for reconsideration filed 3/1/2012, reconsideration denied 5/1/2012
WCAB, affirming its prior decision [See Booker v. Cincinnati Bengals, PSI, 2012 Cal. Wrk. Comp. P.D. LEXIS --], held that WCAB did not have subject matter jurisdiction over applicant’s claim against Cincinnati Bengals for industrial injuries suffered by applicant while playing professional football in California during period 2/16/2000 to 4/1/2003, when WCAB found (1) no basis for territorial jurisdiction (injuries sustained in California) over Bengals pursuant to “temporarily” employed provisions of Labor Code § 3600.5(b) because all four conditions of Labor Code § 3600.5(b) were met, as applicant was “temporarily” employed in California by Bengals because he played only one game in California during his three seasons playing, Bengals provided prima facie evidence of self-insurance under laws of Ohio, which are similar to workers’ compensation laws of California, Bengals offered evidence that players injured while playing in California were covered by Ohio’s workers’ compensation laws, and Ohio recognizes California’s extraterritorial provisions and exempts California employers and employees covered by California’s workers’ compensation laws from application of Ohio’s workers’ compensation, and (2) WCAB found no basis for extra-territorial jurisdiction (injuries sustained outside California) over Bengals because applicant was not “regularly employed” in California under Labor Code §  3600.5(a) based upon WCAB’s determinations that, as a matter of law, applicant’s one day of employment in California over a three year period could not constitute regular employment, that California has no significant interest in workers’ compensation claim of an employee whose contract was not made in California, who worked in California for only one day in three years, and who otherwise had no significant connection to California, and that fact that applicant paid income tax in California was not sufficient to confer jurisdiction in light of statutory scheme for determining jurisdiction; WCAB also found that (1) Labor Code §  3600.5(b) does not require production of a “certificate” showing that out-of-state employer’s workers’ compensation  insurance provides extra-territorial coverage, (2) Labor Code §  3600.5(b) requires only that out-of-state employer have valid extra-territorial insurance coverage under other state’s laws, and does not allow WCAB to find subject matter jurisdiction based on employer’s alleged failure to comply with insurance notice requirements of other state, and (3) even if it were to assume that subject matter jurisdiction under Labor Code §  3600.5(b) might be proper, WCAB would not exercise jurisdiction based on parties’ forum selection clause.
SANCTIONS
Flores v. ABM Industries, Inc., PSI, 2012 Cal. Wrk. Comp. P.D. LEXIS 65
WCAB, affirming WCJ’s order disallowing lien claimant’s interpreting lien for failure to carry burden of proving reasonableness of lien and necessity of services, rescinded WCJ’s imposition of Labor Code § 5813 sanctions against lien claimant and its representative in amount of $750.00 each plus attorney’s fees for failure to appear at lien trial prepared to meet burden of proving entitlement to payment of its lien, when WCAB found that, although lien conference and MSC have identical purpose and lien claimant should have disclosed evidence at lien conference,  lien claimant could have reasonably been confused by WCJ’s order at lien conference to serve defendant with evidence it intended to offer in support of its lien at trial and that failure to do so could adversely affect its case.
Weilmann v. United Temporary Services, 2012 Cal. Wrk. Comp. P.D. LEXIS 163
WCAB, after issuing NIT [See Weilmann v. Untied Temporary Services, 2012 Cal. Wrk. Comp. P.D. LEXIS --],  imposed sanctions on defendant and defense counsel in amount of $900.00 and awarded costs to applicant’s attorney of $15,610.00 under Labor Code § 5813 and 8 Cal. Code Reg. § 10561, when WCAB found that defendant violated Code of Civil Procedure §§ 2019.030, 2023.010, 2025.410, and 2025.610, by seeking to depose applicant on multiple occasions without reasonable justification.
Campos v. Keiro Nursing Home, 2012 Cal. Wrk. Comp. P.D. LEXIS 11
WCAB affirmed WCJ’s imposition of $2,500.00 sanction and award of attorney’s fees under Labor Code § 5813 and 8 Cal. Code Reg. § 10561(b) against lien claimant who provided interpreting services to applicant/nurse assistant with 3/26/2008 industrial injuries to her head, neck, hand, back, and psyche, and WCJ’s order disallowing interpreting lien, when lien claimant failed to appear at scheduled lien conference on 9/7/2011, it was unclear whether lien claimant appeared through attorney or hearing representative at subsequent conference on 10/26/2011, and WCAB found that, since only evidence offered by lien claimant was a statement dated 10/21/2011 for $351.00 purportedly for interpreting at a functional capacity evaluation and an occupational profile analysis occurring on 5/13/2008, lien claimant failed to even remotely approach burden of proof necessary to establish its lien, thereby justifying WCJ’s conclusion that lien claimant was bringing a claim or asserting a position that was indisputably without merit and/or presenting a claim or raising an issue that was not warranted under the law. 
STATUTE OF LIMITATIONS
Tanksley v. City of Santa Ana, PSI, 2012 Cal. Wrk. Comp. P.D. LEXIS 105
WCAB, affirming WCJ, held that applicant/police officer’s 2005 claim for industrial injury in form of hypertension, hypertensive heart disease and left ventricular hypertrophy during period 1988 to 9/29/2009, with 3/16/2006 date of injury pursuant to Labor Code § 5412, was not barred by Labor Code § 5405 statute of limitations, notwithstanding that applicant did not act within one year to adjudicate his 2003 claim of industrial injury in form of high blood pressure after it was denied by defendant, because injury to applicant’s heart found by WCJ was different than high blood pressure alleged on 2003 claim form and, because Labor Code § 3212.5 presumption of industrial causation applied, applicant’s heart trouble could not be attributed to any disease that existed before it developed or manifested itself. 
TEMPORARY DISABILITY
Esparza v. Barrett Business Services, Inc., PSI, 2012 Cal. Wrk. Comp. P.D. LEXIS 21
WCAB, rescinding WCJ’s finding, held that applicant who suffered industrial injuries to his head, neck and right shoulder on 12/21/2010, was not entitled to temporary disability benefits pursuant to the 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, because applicant was undocumented and unable to legally accept defendant’s offer of modified or alternate work and applicant’s reinstatement without documentation was prohibited under federal law.
Sullivan v. Café Amsterdam, 2012 Cal. Wrk. Comp. P.D. LEXIS 44
WCAB, rescinding WCJ’s finding, held that applicant/bartender who suffered 7/3/2004 industrial injuries to her cervical spine, psyche, and in forms of GERD, sleep disorder and deconditioning, was not entitled to temporary disability indemnity beyond 104-week limitation set forth in Labor Code § 4656(c)(1), as awarded by WCJ based upon the “severe burn” exception in Labor Code § 4656(c)(3)(D), when WCAB found that medical evidence did not support a finding that applicant’s burn was “severe,”  because there was no record of extended or major medical treatment for the burn, or of any temporary or permanent  disability caused by burn itself, most references in medical record to a burn were based solely on applicant’s reporting to physicians and not on a review of medical records, although applicant’s Qualified Medical Evaluator referred to applicant’s burn as “severe,” he did not provide any underlying factual basis or reasoning for his characterization, and WCAB found that applicant’s description of her burns to evaluating physicians as first and second degree burns, even if accurate, would not necessarily qualify burns as “severe.”
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