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LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2022. The “Top 25” list for the latter part of 2022 includes several new decisions addressing COVID-19 issues, including application of the Labor Code § 3212.86 COVID presumption and how defendant may rebut the presumption by showing an employee’s COVID-19-related illness did not arise out of and in the course of employment.
There is also a split panel opinion interpreting the language in Labor Code § 4659, which provides helpful guidance for practitioners regarding when to start life pension payments in cases of commuted permanent disability awards. Also included is one of the first WCAB panel decisions involving “gig” workers, in which Lyft asserted that the WCAB lacked jurisdiction over applicant’s claim under Proposition 22 in the context of a subpoena deuces tecum for records. As the law evolves, cases involving “gig” workers will be of great interest to the workers’ compensation community.
In another particularly noteworthy case, the WCAB interpreted the language in Labor Code § 4656(c)(3)(F) to conclude that a high velocity event, i.e., the impact on applicant when he was hit by a car, was sufficient to trigger the “high velocity eye injury” exception to the 104-week cap on temporary disability indemnity. Prior cases have focused on injuries caused by projectile-type objects directly damaging the eye.
Finally, the list includes a panel decision addressing the principles to be follow
ed when a defendant asserts a third-party credit against its liability to pay workers’ compensation benefits. In that case, the WCAB held that defendant’s third-party credit could not be asserted against applicant’s award of attorney’s fees.
CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.
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ALTERNATIVE DISPUTE RESOLUTION
■ Manuel Ramirez, Applicant v. Vons, PSI, adjusted by Albertsons Holdings, Inc., Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS –
W.C.A.B. No. ADJ15505678—WCAB Panel: Chair Zalewski, Commissioners Capurro, Dodd
Workers’ Compensation Appeals Board (Board Panel Decision)
Opinion Filed November 10, 2022
Alternative Dispute Resolution—Petition for Reconsideration/Removal of Arbitration Decision—WCAB Jurisdiction—WCAB, denying reconsideration/removal, held that Arbitrator’s order issued in carve-out case directing parties to further develop medical record regarding applicant’s level of permanent disability was not subject to review by WCAB because under Labor Code § 3201.5(a)(1), parties in carve-out cases may only seek WCAB review of final orders, decisions or awards by Arbitrator and may not seek review of interlocutory or interim orders, such as order to develop record issued by Arbitrator in this case. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 28.27, 33.01[7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.04[2].]
ATTORNEY’S FEES
■ Eugene Weerasekera, Applicant v. Built by Design, Employers Resource, California Insurance Guarantee Association on behalf of Reliance Insurance, in liquidation, c/o Intercare Insurance Services, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 280
W.C.A.B. Nos. ADJ2795715 (VNO 0396324)—WCAB Panel: Chair Zalewski, Commissioners Dodd, Sweeney
Opinion Filed October 12, 2022
Attorney’s Fees—Calculation—Permanent Disability Overpayments—WCAB, granting reconsideration and reversing WCJ’s finding, held that applicant’s attorney was entitled to attorney’s fee based on total amount of permanent disability benefits advanced by defendant between 3/29/2000 and 12/19/2004, including overpayments resulting from enactment of SB 899 which caused applicant’s permanent disability award to be lower than advances issued by defendant, when WCAB reasoned that Labor Code §§ 4902 and 4903(a) render all sums paid as “compensation” subject to attorney’s fee lien, whether paid as voluntary advances or pursuant to award, without requiring that awards amounting to less than their corresponding advances be applied retroactively to preclude previous advances from lien, that statutory construction authorizing WCAB to determine attorney’s fee liens based on benefits advanced but not included in applicant’s award is consistent with long-standing case law finding attorney’s fee liens may be assessed against all benefits applicant may receive, and that based on this interpretation of Labor Code §§ 4902 and 4903(a), as supported by case law, applicant’s attorney’s fee lien in this case attached to entirety of permanent disability advances issued by defendant. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 25.43; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.45[1], [2].]
CONTRIBUTION
■ Paul Neyer, Applicant v. Mission Linen Supply, PSI, California Insurance Guaranty Association for Credit Indemnity Company, in liquidation, Arrowpoint Capital, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 266, 87 Cal. Comp. Cases –
W.C.A.B. Nos. ADJ4336300 (VNO 0429778), ADJ3180323 (VNO 0425253), ADJ3602025 (VNO 0425255), ADJ1492342 (VNO 0362819)—WCAB Panel: Commissioner Sweeney, Chair Zalewski, Commissioner Razo
Opinion Filed August 22, 2022
Contribution and Reimbursement—Division of Liability Between Insurers—WCAB, granting reconsideration, rescinded Arbitrator’s decision ordering self-insured employer Mission Linen Supply (Mission Linen) to reimburse Arrowpoint Capital (Arrowpoint) for settlement sums Arrowpoint paid to California Insurance Guarantee Association (CIGA) in excess of Arrowpoint’s pro rata share of liability, and WCAB returned matter to trial level for further proceedings regarding reimbursement, when Arrowpoint shared cumulative trauma period with CIGA and, pursuant to Insurance Code § 1063.1(c)(9), was “other insurance” for all benefits due to applicant for that injury, and Mission Linen was jointly and severally liable with CIGA for medical treatment and temporary disability benefits resulting from earlier specific low back injury, and WCAB reasoned that while Arbitrator determined Mission Linen should reimburse Arrowpoint for everything “in excess of Arrowpoint’s pro rata share of liability,” he did not explain how he arrived at this division of liability, thereby requiring further proceedings on this issue; in returning matter to Arbitrator, WCAB clarified that if CIGA had not settled and were still party to these proceedings, CIGA would be able to obtain reimbursement from Mission Linen as “other insurance” for medical treatment and temporary disability for applicant’s low back, that “other insurance” analysis does not apply to dispute between two insurers and, therefore, Arrowpoint is not entitled to same reimbursement to which CIGA would be entitled, and that to extent Arrowpoint’s settlement with CIGA also settled temporary disability or medical treatment benefits for successive injuries with overlapping body parts, Arrowpoint is entitled to reimbursement from Mission Linen for portion of settlement with CIGA that is Mission Linen’s liability for non-permanent disability benefits paid. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 31.13[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.15.]
COVID-19 PANDEMIC
■ Nichole Jackson, Applicant v. County of Los Angeles, PSI, Defendant, 2022 Cal. Wrk. Comp. P.D. LEXIS 230, 87 Cal. Comp. Cases 1017
W.C.A.B. No. ADJ13319190—WCAB Panel: Chair Zalewski, Commissioners Sweeney, Razo
Opinion Filed August 23, 2022
Injury AOE/COE—COVID-19—Burden of Proof—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant, while employed as probation officer on 3/11/2020, sustained industrial injury in form of COVID-19, based on presumption of industrial causation in Labor Code § 3212.86 and on opinion of internal medicine qualified medical evaluator (QME), and WCAB returned matter to trial level for further development of record on issue of industrial causation, when WCAB found that presumption only covers cases of COVID-19 for employees who worked in person from 3/19/2020 to 7/5/2020 and was not applicable to applicant’s 3/11/2020 date of injury, and that QME’s opinion was not substantial evidence on issue of industrial causation because QME was not provided with specific history given in trial testimony, including applicant’s working conditions, frequency and duration of her contacts with public and with her coworkers, and fact that none of applicant’s coworkers were diagnosed with COVID-19 during any relevant period. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.05[2][a]-[c], 27.01[1][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.01[4].]
■ Sofia Sevillano, Applicant v. State of California, IHSS, legally uninsured, administered by York Risk Services Group, a Sedgwick Company, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 255, petition for reconsideration filed 10/24/2022
W.C.A.B. No. ADJ13511723—WCAB Panel: Commissioners Razo, Sweeney, Chair Zalewski
Opinion Filed September 28, 2022
Injury AOE/COE—COVID-19—Burden of Proof—Rebuttal of COVID-19 Presumption—WCAB, granting reconsideration, rescinded decision in which WCJ found that defendant successfully rebutted Labor Code § 3212.86 presumption that applicant suffered COVID-19-related illness arising out of and in course of her employment as home healthcare worker on 6/26/2020, and issued new decision finding that applicant qualified for COVID-19 presumption in Labor Code § 3212.86, as WCJ determined, but that defendant did not rebut presumption, when WCAB reasoned that to rebut presumption, defendant has burden to establish that employee’s COVID-19-related illness did not arise out of and in course of employment, that here defendant offered no substantial evidence such as treatment reports, medical-legal reports or witness testimony indicating that applicant was infected with COVID-19 on non-industrial basis, that although records from applicant’s COVID-19 hospitalization mentioned that applicant reported her roommates “are also COVID positive,” applicant denied stating this, and WCAB found defendant’s affirmative burden of rebutting presumption of industrial causation requires more than passing reference in chart notes to statement made without interpreter and otherwise unsubstantiated in record, and that applicant’s uniform complaints of shortness of breath, subsequent eight-day hospitalization and diagnosis of acute hypoxic respiratory failure, COVID-19 and pneumonia, were sufficient to support finding that applicant sustained compensable COVID-19-related illness, including injury to her lungs in form of pneumonia, but WCAB deferred findings related to all other body parts. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.05[2][a]-[c], 27.01[1][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.01[4].]
DISCOVERY
■ Robert Jones, Applicant v. Russo Brothers Transportation, Protective Insurance Company, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 278
W.C.A.B. No. ADJ13967400—WCAB Panel: Commissioners Sweeney, Capurro, Chair Zalewski
Opinion Filed October 17, 2022
Discovery—Subpoenas Duces Tecum—Meet and Confer Requirements—WCAB, granting removal, rescinded WCJ’s order denying eight petitions filed by defendant seeking to quash various subpoenas duces tecum directed by applicant to third parties, because defendant failed to include meet and confer declarations in support of its petitions pursuant to Code of Civil Procedure § 2025.410(c), and WCAB returned matter to trial level for further proceedings, when WCAB identified multiple issues involving application of Code of Civil Procedure to workers’ compensation discovery procedures that were not addressed in current record and required further analysis, noting that workers’ compensation system and civil courts have different rules for discovery and document filing and it is unclear how these differences should be reconciled with respect to meet and confer requirements, and while WCAB believed that best practice for party filing motion to quash subpoena is to comply with meet and confer requirements in Code of Civil Procedure § 2025.410(c), WCAB declined to find compliance mandatory on this record and concluded that upon return to trial level WCJ must effectuate appropriate balance between public policy favoring liberality of pretrial discovery and specific policy applicable to workers’ compensation cases for expeditious, inexpensive, and unencumbered adjudication, and that to allow adequate analysis, record required further development to address interaction between Labor Code § 5710 (provisions governing workers’ compensation depositions), civil rules of discovery set forth in Code of Civil Procedure § 2016.010 et seq., and relevant workers’ compensation regulations, including 8 Cal. Code Reg. § 10640, which provides authority for issuance of subpoenas under Code of Civil Procedure. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 25.43; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.45[1], [2].]
INJURY AOE/COE
■ Christopher Johnson, Applicant v. Lexmar Distribution dba LDI Trucking, Inc., Clear Spring Property and Casualty Company administered by Cannon Cochran Management Services, Inc., Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 190 WARNING! ON NOVEMBER 3, 2022, THE DCA VACATED THE WCAB'S JULY 1, 2022 DECISION AND REMANDED THE CASE WITHOUT ADDRESSING THE ISSUE.
W.C.A.B. No. ADJ14203968—WCJ Alan L. Skelly (AHM); WCAB Panel: Commissioners Snellings, Sweeney, Chair Zalewski
Opinion Filed July 1, 2022
WARNING! ON NOVEMBER 3, 2022, THE DCA VACATED THE WCAB'S JULY 1, 2022 DECISION AND REMANDED THE CASE WITHOUT ADDRESSING THE ISSUE. Injury AOE/COE—Intoxication—WCAB, denying reconsideration, held that applicant suffered injury AOE/COE to his lumbar spine, knees, wrists, and left ankle while working as truck driver on 1/3/21, but that his entitlement to workers’ compensation benefits was barred under Labor Code § 3600(a)(8), which precludes collection of compensation benefits if injury is caused by commission of felony or crime punishable “as specified in [Penal Code § 17(b)],” for which employee is convicted, and WCAB found that in this case applicant was injured during altercation with police officers for which he pled guilty to two misdemeanor charges, carrying potential of jail time and/or fines as specified in Penal Code § 17(b), and, therefore, Labor Code § 3600(a)(8) defense was applicable even though applicant was not convicted of felony. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.24, 4.95, 4.113(a); Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.03[5].]
■ Jack Rieger, Applicant v. Fox Sports 1, LLC, Discovery RE/Travelers USF&G, administered by Gallagher Bassett Services, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 254, petition for writ of review filed 10/31/2022
W.C.A.B. No. ADJ11670075—WCAB Panel: Commissioners Dodd, Snellings, Chair Zalewski
Opinion Filed September 15, 2022
Injury AOE/COE—Self-Inflicted Injury and Suicide—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant, while employed as production assistant, sustained catastrophic injury resulting from fall on 10/2/2018, and that defendant did not provide sufficient evidence to demonstrate that applicant’s fall was barred under Labor Code § 3600(a)(5) or (6) due to suicidal ideation or self-harm, when WCAB reasoned that exclusion for self-inflicted injury required proof not only that injury was self-inflicted, but also that employee had specific intent to cause self-inflicted injury, and that here, although defendant introduced evidence tending to show that applicant could not have fallen over safety railing accidentally without first at least partially climbing it, defendant presented no actual evidence to indicate that applicant intentionally threw himself off stairwell with intent to cause himself injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.21, 4.22; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.03[2], [3].]
Injury AOE/COE—Departure From Duties—WCAB, after granting reconsideration, held that defendant failed to demonstrate that applicant engaged in outright departure from his employment duties, thereby rendering his 10/2/2018 injury non-compensable, where evidence was uncontested that applicant was injured while using stairwell at his place of employment during work hours, there was no suggestion he was not permitted to use stairwell, security camera footage showed applicant clearly reporting for work on morning of injury, and witnesses confirmed that applicant was performing work that day, and under these circumstances, WCAB found that there was no serious dispute applicant was engaged in his general employment duties at time of his injury, and although defendant insisted that applicant must have at least partially climbed safety railing in order to fall over it, such that he was necessarily engaged in fundamental departure from course of his employment, WCAB held that there may have been any number of possible explanations for why applicant chose to climb safety railing which would not constitute bar to compensation, and that because it was impossible to determine why or how applicant fell, any doubts as to compensability should be resolved in applicant’s favor. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.112, 4.113; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.05[1].]
■ Donald Dacumos (Deceased), Applicant v. Pete’s Home, State Compensation Insurance Fund, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 274
W.C.A.B. No. ADJ14393426—WCJ Christopher Miller (OAK); WCAB Panel: Chair Zalewski, Commissioners Snellings, Razo (concurring, but not signing)
Opinion Filed October 10, 2022
Injury AOE/COE—Assault by Co-Worker—WCAB, denying reconsideration, affirmed WCJ’s finding that decedent’s death arose out of and in course of his employment, when WCAB found that decedent’s murder, which occurred at work when he was shot and killed by co-worker over alleged affair with co-worker’s wife who worked for same employer at different facility, was sufficiently connected to decedent’s employment even though killing was motivated by personal animus, where parties all became acquainted through work and decedent was at work performing services for employer at time he was killed. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.41, 4.53[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.04[3][c].]
JURISDICTION
■ Brian Burk, Applicant v. Sarens International, Arch Insurance administered by Charles Taylor, Inc., Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 195, 87 Cal. Comp. Cases 919
W.C.A.B. No. ADJ13623575—WCJ Norma L. Acosta (SJO); WCAB Panel: Commissioner Razo, Deputy Commissioner Schmitz, Commissioner Snellings (concurring, but not signing)
Opinion Filed July 21, 2022
WCAB Jurisdiction—Regular Work in California—WCAB, following grant of reconsideration, affirmed WCJ’s finding that California had jurisdiction over applicant rigging superintendent’s claim for 1/19/2016 industrial back injury, notwithstanding that applicant was resident of Nebraska at time of injury, made employment contract in Nebraska, and suffered injury while in Jamaica, when WCAB reasoned that under Labor Code § 3600.5(a), employee who sustains injury outside of California may still be entitled to California workers’ compensation benefits if employee was hired in California or is “regularly working” in California, that applicant credibly testified he came to California for work approximately eight times while employed by defendant, worked in state for two to four weeks each of those times and received per diems for hotels and meals, that defendant’s main facilities were in California and defendant received benefit of applicant’s work in California as applicant came to State of California to prepare equipment for other job locations, that above evidence supported WCJ’s finding that applicant was “regularly working” in California, and that defendant failed to produce evidence to rebut applicant’s evidence as to his employment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.22[2], [3], 21.02, 21.06, 21.07[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, §§ 13.01[2], 13.02.]
■ Gisela Murguia, Applicant v. Lyft, Inc., Blue Star Claims Management Phoenix, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 288
W.C.A.B. No. ADJ15999271—WCJ Dean M. Stringfellow (VNO); WCAB Panel: Commissioners Razo, Sweeney, Deputy Commissioner Schmitz
Opinion Filed October 13, 2022
WCAB Jurisdiction—Gig Workers—Discovery Orders—WCAB, denying removal, affirmed WCJ’s “meet and confer” order issued in response to defendant’s objection to applicant’s subpoena duces tecum (SDT) seeking production of records from applicant’s alleged employer, Lyft, Inc. (Lyft), when defendant asserted that WCAB had no personal or subject matter jurisdiction to issue “meet and confer” order because applicant, who claimed she suffered compensable injuries to her neck, back and other body parts on 2/15/2022, was not Lyft’s employee but rather was independent contractor under Proposition 22 (Prop 22), which is enacted as Business & Professions Code § 7451 and exempts certain app-based transportation services from having to classify their California gig workers as employees under Labor Code § 2775, but WCAB found no evidence that it lacked personal or subject matter jurisdiction in this case, and further reasoned that Prop 22 was declared unconstitutional in Castellanos v. State of California (2021) 86 Cal. Comp. Cases 826, that neither Prop 22 nor burden of proof imposed on alleged employer under Labor Code § 2775 affects WCAB’s jurisdiction to issue interim discovery orders, that applicant was presumed to be employee under Labor Code § 3357 because she was performing services for Lyft when she was injured and defendant’s claim that she was independent contractor was disputed issue subject to WCAB jurisdiction, and that issuance of “meet and confer” order did not cause defendant irreparable harm or significant prejudice so as to justify removal, especially given defendant’s claim that it had no records sought by SDT and could simply respond to SDT with “Declaration of No Records.” [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.03, 25.40, 25.43; Rassp & Herlick, California Workers’ Compensation Law, Ch. 2, § 2.06[1]; Ch. 15, § 15.45.]
MEDICAL-LEGAL PROCEDURE
■ Daniel Hazen, Applicant v. Porterville Unified School District, PSI, administered by Keenan & Associates, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 173, 87 Cal. Comp. Cases 932
W.C.A.B. No. ADJ13462646—WCAB Panel: Chair Zalewski, Commissioners Sweeney, Razo
Opinion Filed June 27, 2022
Medical-Legal Procedure—Selection and Assignment of Panel Qualified Medical Evaluators—WCAB, denying reconsideration, affirmed WCJ’s finding that replacement qualified medical evaluator (QME) panel issued by Medical Unit at defendant’s request was invalid, when replacement panel was issued after applicant became represented by counsel, and WCAB found that although either party was entitled to request new QME panel once applicant became represented since applicant had not received evaluation by physician from first QME panel, requesting party must obtain new panel in accordance with procedure outlined in Labor Code § 4062.2, and because defendant did not send applicant objection pursuant to §§ 4062.1 and 4062.2 prior to submitting its request for replacement panel to Medical Unit, second QME panel was not validly obtained pursuant to Labor Code § 4062.2. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[1][a], [b], 32.06[2][a], [b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[3].]
■ Laura Rodriguez, Applicant v. Continuing Life, LLC, Safety National Casualty Company, administered by Corvel Corporation, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 304
W.C.A.B. No. ADJ14754391—WCJ Lawrence Keller (SFO); WCAB Panel: Chair Zalewski, Commissioners Sweeney, Razo
Opinion Filed October 28, 2022
Medical-Legal Procedure—Qualified Medical Evaluator Panel Requests—WCAB, denying reconsideration based on removal standard, affirmed WCJ’s finding that applicant made timely strike from qualified medical evaluator (QME) panel 14 days after assignment of panel through online process, when WCAB reasoned that 8 Cal. Code Reg. § 10605 is controlling authority governing service if it differs from Code of Civil Procedure § 1013, and broadly provides for additional time to exercise “any right” when document is served “by any method other than personal service,” that since online issuance of QME panel to requesting party is akin to “electronic service” and is not “personal service,” mailbox extension in 8 Cal. Code Reg. § 10605 is applicable, thereby entitling requesting party to 10 days per Labor Code § 4062.2(c), plus additional five days to make strike, and that to extent WCAB in Crawford v. Northgate Landscape Management, 2019 Cal. Wrk. Comp. P.D. LEXIS 4 (Appeals Board noteworthy panel decision), reached different conclusion (i.e., that party who requested QME panel through online system was not entitled to additional time for mailing), WCAB’s decision was based on improper analysis of applicable mailbox extension because WCAB relied on Code of Civil Procedure § 1013 instead of 8 Cal. Code Reg. § 10605. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[1][a], 22.11[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[2], Ch. 16, § 16.53[1].]
MEDICAL TREATMENT
■ Armando Zepeda, Applicant v. Starview Adolescent Center, Quality Comp, administered by Athens Administrators, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 166, 87 Cal. Comp. Cases 828
W.C.A.B. No. ADJ11438423—WCAB Panel: Commissioner Sweeney, Deputy Commissioner Schmitz, Commissioner Snellings (participating, but not signing)
Opinion Filed June 20, 2022
Medical Treatment—Utilization Review—Assisted Living Facility—WCAB, granting reconsideration and rescinding WCJ’s decision, held that applicant teacher is entitled to continued outpatient treatment in Casa Colina Hospital Transitional Living Center’s residential rehabilitation program following 7/30/2018 traumatic brain injury until such time as defendant establishes change in applicant’s condition or circumstances warranting discontinuation of treatment, pursuant to in Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), and applicant’s treating physician has agreed upon care plan appropriate for applicant’s medical needs, when WCAB found that treating physician’s Requests for Authorization (RFAs) submitted on 2/18/2021, 3/17/2021, 4/22/2021, and 5/14/2021, seeking to continue applicant’s ongoing, previously-authorized inpatient treatment were not subject to additional utilization review (UR) because there was no substantial medical evidence of change in applicant’s circumstances or condition, and defendant was not required to provide ongoing RFAs to continue applicant’s inpatient treatment, that because defendant did not issue timely UR decision after receiving 5/14/2021 RFA and failed to conduct UR with respect to RFAs that followed, WCJ was authorized to determine issue of what medical treatment was reasonably required to cure or relieve applicant from effects of his injury, that under Labor Code § 4610(i)(4)(C), medical care in cases of concurrent review may not be discontinued until medically appropriate care plan has been agreed upon by physician, and that because applicant in this case does not have safe discharge location, he is entitled to continued inpatient treatment until care plan has been agreed upon by his treating physician. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.02[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[7].]
■ Chantel Sevillano, Applicant v. Kore 1 Inc., Atlantic Specialty Insurance Company, adjusted by Intact Insurance Specialty Solutions, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 205, 87 Cal. Comp. Cases 941
W.C.A.B. No. ADJ11380052—WCAB Panel: Chair Zalewski, Commissioners Sweeney, Razo
Opinion Filed July 18, 2022
Medical Treatment—Utilization Review—Employer’s Duty to Investigate Treatment Requests—WCAB, denying reconsideration, affirmed finding that WCJ had jurisdiction to address primary treating physician’s request for medical treatment in form of outpatient rehabilitation program for balance and pain management because utilization review (UR) determination denying request was untimely, when WCAB found that although primary treating physician’s treatment request was not subject to Labor Code § 4610’s UR time deadlines because request was defective, defendant was nonetheless required to act with reasonable diligence in investigating and responding to request for treatment after receiving request, that duty to perform good faith investigation of employee’s claim and provide benefits includes obligation by defendant’s attorney to transmit copy of request for treatment to claims adjuster within reasonable time if request was received by attorney and it is unclear whether it was received by adjuster, that in this case, defendant’s attorney received 11/17/2021 report from primary treating physician labeled “Request for Authorization” on 11/22/2021 and submitted it for UR on 2/14/2022, and that since defendant’s attorney did not submit copy of report to adjuster (or UR provider) or otherwise take affirmative steps to investigate treatment request for approximately two and one half months after receiving it, WCJ correctly found that UR determination was untimely. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2][c], 22.05[6][b][iii]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[4], [6].]
PENALTIES
■ Andrew Stamper, Applicant v. Bay Area Air Quality Management District, York Risk Services, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 213, 87 Cal. Comp. Cases 1043
W.C.A.B. No. ADJ12735361—WCJ Christopher Miller (OAK); WCAB Panel: Deputy Commissioner Schmitz, Chair Zalewski, Commissioner Sweeney
Opinion Filed August 3, 2022
Penalties—Delay in Payment of Employment Development Department Lien—WCAB, denying reconsideration, affirmed WCJ’s award of $10,000.00 penalty under Labor Code § 5814 payable to applicant, based on defendant’s unreasonably delayed payment to Employment Development Department (EDD) following its agreement to settle EDD lien for less than lien amount, when applicant conditioned Compromise and Release agreement in case-in-chief on defendant’s payment of EDD lien so applicant could resume collection of EDD benefits, and expressly sought enforcement of defendant’s agreement to pay EDD lien, yet defendant waited for more than three months to make payment, and WCAB found that WCJ adequately evaluated factors in Ramirez v. Drive Financial Services (2008) 73 Cal. Comp. Cases 1324 (Appeals Board en banc opinion), in awarding penalty for unreasonable delay, and rejected defendant’s assertion that its payment to EDD was not unreasonably delayed because it was timely made under Unemployment Insurance Code § 2629.1, where WCAB determined that Unemployment Insurance Code § 2629.1 was not applicable because defendant did not voluntarily accept liability for workers’ compensation benefits and there was no adjudication regarding defendant’s liability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 10.40[1], [3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.11[2].]
PERMANENT DISABILITY
■ Vincent Helper, Applicant v. County of Sonoma/Health Services Dept., PSI, administered by Intercare Holdings Insurance Services, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 179, petition for writ of review filed 7/27/22
W.C.A.B. No. ADJ7949228—WCJ Katie F. Boriolo (SRO); WCAB Panel: Commissioners Sweeney, Snellings, Chair Zalewski
Opinion Filed June 21, 2022
Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant suffered 100 percent permanent disability as result of 7/22/2010 industrial injury to his right foot and ankle, based on opinions of applicant’s vocational expert, when vocational expert, after evaluating applicant, concluded that applicant was not amenable to vocational rehabilitation and was precluded from employment based on medical work restrictions, and WCAB found that vocational expert’s opinion was substantial evidence to rebut strict AMA Guides rating of 54 percent permanent disability pursuant to Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, and Contra Costa County v. W.C.A.B. (Dahl) (2015) 240 Cal. App. 4th 746, 193 Cal Rptr. 3d 7, 80 Cal. Comp. Cases 1119, and was more persuasive than opinion of defendant’s vocational expert, and WCAB rejected defendant’s assertion that finding of 100 percent permanent disability was inappropriate given agreed medical examiner’s 15 percent apportionment of permanent disability to non-industrial factors, because vocational expert determined that applicant was permanently totally disabled and unable to work in labor market solely due industrial injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3][a][ii], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][d], 7.12[2][a], [d][iii], 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]
■ Joseph Ryan, Applicant v. California Department of Corrections, Legally Uninsured, Adjusted by State Compensation Insurance Fund, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 272, 88 Cal. Comp. Cases –, petition for writ of mandate filed 8/19/2022
W.C.A.B. Nos. ADJ10256108 (MF), ADJ10255968, ADJ10256212, ADJ10256223, ADJ10489875—WCJ Lynn Devine (VNO); WCAB Panel: Commissioners Razo, Snellings, Deputy Commissioner Schmitz
Opinion Filed September 23, 2022
Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant suffered 100 percent permanent disability as result of industrial spine injuries while employed as correctional captain on 5/29/2015 and during period 7/12/2011 through 12/11/2015, and rejected defendant’s reliance on Dept. of Corrections & Rehabilitation v. W.C.A.B. (Fitzpatrick) (2018) 27 Cal. App. 5th 607, 238 Cal. Rptr. 3d 224, 83 Cal. Comp. Cases 1680, to dispute WCJ’s finding of permanent total disability, when WCAB found that Fitzpatrick was distinguishable from this case in that it involved 2012 injury, to which Labor Code § 4660 applied, whereas this case involved two 2015 injuries, making Labor Code § 4660.1 applicable, that Labor Code § 4660.1(g) provides, “[n]othing in this section shall preclude a finding of permanent total disability in accordance with Section 4662,” and, in turn, Labor Code § 4662(b) specifically provides that permanent disability shall be determined “in accordance with the fact,” such that WCAB may rely on substantial evidence in post-2012 cases to rebut scheduled permanent disability rating and justify finding of permanent total disability, and that in this case, unlike in Fitzpatrick, applicant secured opinion of vocational expert, with whom agreed medical examiner concurred in finding applicant 100 percent permanently disabled, thereby rebutting strict impairment rating for applicant’s spine. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.12[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]
Permanent Disability—Apportionment—Benson Exception—WCAB, granting reconsideration, concluded that WCJ did not err in issuing combined award of permanent total disability for applicant correctional officer’s two spine injuries, when WCAB found that although agreed medical examiner concluded applicant’s spinal disability should be apportioned 40 percent to specific injury and 40 percent to cumulative injury, doctor explained that he could not really parcel out, with reasonable medical probability, percentages to which each of these injuries causally contributed to applicant’s overall permanent disability, and, therefore, “intertwined injuries” exception to separate awards requirement in Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, was applicable. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], 8.05[1]-[3], 8.07[2][d][ii], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.12[2], 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 5, 6.]
Permanent Disability—Apportionment—Preexisting Factors—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant suffered 100 percent permanent disability as result of industrial spine injuries while employed as correctional captain on 5/29/2015 and during period 7/12/2011 through 12/11/2015, without apportionment between those injuries, but deferred issue of apportionment under Labor Code § 4663, when WCAB found that WCJ erred in applying Hikida v. W.C.A.B. (2017) 12 Cal. App. 5th 1249, 219 Cal. Rptr. 3d 654, 82 Cal. Comp. Cases 679, to deny apportionment based on incorrect premise that all of applicant’s permanent disability resulted from his spinal surgeries, that pursuant to County of Santa Clara v. W.C.A.B. (Justice) (2020) 49 Cal. App. 5th 605, 262 Cal. Rptr. 3d 876, 85 Cal. Comp. Cases 467, Hikida precludes apportionment only where industrial medical treatment is sole cause of permanent disability, and that WCJ must revisit issue of apportionment under Labor Code § 4663 based on agreed medical examiner’s findings of preexisting spinal disease. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[2][a], 8.06[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.41[3], 7.45[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 4, 6.]
■ Kevin Suh, Applicant v. Metropolitan State Hospital, State Compensation Insurance Fund, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 220, petition for reconsideration granted 11/7/2022
W.C.A.B. Nos. ADJ9017624, ADJ9017629—WCAB Panel: Chair Zalewski, Deputy Commissioner Schmitz, Commissioner Razo (dissenting)
Opinion Filed August 15, 2022
Permanent Disability—Commencement of Life Pension Payments—WCAB, granting reconsideration in split panel opinion, rescinded WCJ’s decision that applicant was not entitled to acceleration of life pension payments after last payment of commuted permanent disability indemnity (which created lengthy “hiatus” between last permanent disability indemnity payment and start of life pension) and substituted new finding that applicant’s life pension payments were due immediately following termination of commuted permanent disability indemnity payments, when parties stipulated to (and WCJ approved stipulation) commutation of 92 percent permanent disability award applicant received for industrial injuries he sustained on 3/15/2013 and during period 1/1/2002 through 3/15/2013, and WCAB panel majority reasoned that Labor Code § 4659(a) plainly states that life pension payments begin after payment of all permanent disability indemnity due under award exceeding 70 percent, and makes no exception for permanent disability indemnity paid out by virtue of commutation, and that interpreting Labor Code § 4659(a) to require life pension payments to commence immediately after exhaustion of commuted permanent disability indemnity payments is consistent with purpose of life pension as discussed in Baker v. W.C.A.B. (2011) 52 Cal. 4th 434, 257 P.3d 738, 129 Cal. Rptr. 3d 133, 76 Cal. Comp. Cases 701, and Brower v. David Jones Construction (2014) 79 Cal. Comp. Cases 550 (Appeals Board en banc opinion), to compensate injured worker for long-term, residual effects of industrial injury, and to act as form of supplemental partial permanent disability benefit consisting of payments to subclass of seriously injured workers, such as applicant, and WCAB rejected defendant’s assertion that applicant’s receipt of life pension benefits immediately following payment of agreed-upon commuted permanent disability indemnity created “windfall” for applicant, and also observed that better practice concerning parties’ stipulated commutation would have been for WCJ to withhold approval of stipulation until parties specified how payment of life pension was to be handled, to account for risk of different interpretations of statute by parties regarding life pension payment; Commissioner Razo, dissenting, found no basis to accelerate applicant’s life pension because approved commutation order contained no agreement for acceleration of payment, and Commissioner Razo opined that because commutation is extraordinary discretionary benefit, application of Labor Code § 4959(a), which provides for permanent disability and life pension benefits to compensate injured worker for long-term, residual effects of industrial injury through periodic payments over time, must be considered together with Labor Code § 5100, which gives WCAB discretion to allow commutation upon showing of immediate and necessary need for more money than periodic payments can provide. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 8.08[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.50[1], [2].]
SETTLEMENTS
■ Fernando Muniz Villalpando, Applicant v. Doherty Brothers, Martin Dusters, State Compensation Insurance Fund, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 226, 87 Cal. Comp. Cases 1030
W.C.A.B. Nos. ADJ599176 (SAC 0333692), ADJ2396484 (RDG 0122019), ADJ7950339—WCAB Panel: Chair Zalewski, Deputy Commissioner Schmitz, Commissioner Sweeney
Settlements—Compromise and Release Agreements—Administration of Medicare Set-Aside—WCAB, granting reconsideration, rescinded WCJ’s order denying applicant laborer’s request to self-administer Medicare Set-Aside (MSA) established as part of 2011 Compromise & Release agreement settling applicant’s claim for 2002 industrial back/neck injury, and WCAB substituted new order granting applicant’s request to take over administration of MSA from professional administrator, despite WCJ’s findings that WCAB had no jurisdiction under Labor Code § 5804 to change MSA’s administrator more than five years after date of injury absent showing of fraud or mistake, and that changing administrator was not in applicant’s best interests, when WCAB concluded that although award may only be set aside after five years on showing of fraud or mistake, WCAB has continued jurisdiction to enforce its awards and may make changes to award after five-year timeframe so long as parties’ rights and obligations under award are not altered, that because change of administrators is merely ministerial act and does not alter parties’ rights or liabilities, WCAB had jurisdiction pursuant to Labor Code § 5803 to change MSA’s administrator upon showing of good cause, that applicant showed good cause to self-administer MSA based on his move to Mexico and Medicare’s exclusion of expenses for medical services provided outside of country, that it was unlikely Medicare would be harmed if applicant left country, that applicant had previously established his mental competency to manage MSA, and that consideration of whether self-administration is in employee’s best interests is not part of competency evaluation, and may not be considered in determining whether self-administration of MSA is appropriate. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 29.09[3][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 18, §§ 18.01[3], 18.07.]
■ Marachelle Jackson, Applicant v. Door To Hope, New York Marine and General Insurance Company, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 237, 87 Cal. Comp. Cases --
W.C.A.B. No. ADJ11061012—WCAB Panel: Commissioners Sweeney, Dodd, Razo
Opinion Filed September 2, 2022
Compromise and Release Agreements—Setting Aside For Good Cause—Undue Influence—WCAB, after granting reconsideration, affirmed WCJ’s order setting aside Order Approving Compromise and Release (OACR), which settled applicant counselor’s claim for orthopedic and psychiatric injuries for $95,000.00, when applicant sought to set aside Compromise and Release approximately two months after its execution and after settlement funds were paid, asserting that settlement was secured through duress and undue influence by her attorney, and WCAB concluded that applicant established good cause to set aside OACR under Labor Code § 5803 based on her uncontradicted testimony regarding actions of her attorney and how they influenced her decision to settle her claim, and WCAB also determined that applicant was psychiatrically unfit to enter Compromise and Release as demonstrated by medical reports issued in months prior to settlement documenting applicant’s severe psychiatric distress, and by WCJ’s observations of applicant’s behavior during trial, which were consistent with medical evidence that she was depressed, anxious and suicidal during treatment, and WCAB rejected defendant’s assertion that to set aside OACR specific medical determination was needed at time of settlement to establish applicant was mentally unfit to make sound decisions. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 29.05[1], [2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 18, § 18.11.]
SUBSEQUENT INJURIES BENEFITS TRUST FUND
■ Craig Markowski, Applicant v. Cedars-Sinai Medical Center, PSI, Subsequent Injuries Benefits Trust Fund, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 199, 87 Cal. Comp. Cases 1022
W.C.A.B. No. ADJ6994280—WCAB Panel: Commissioners Dodd, Razo, Sweeney
Opinion Filed July 15, 2022
Subsequent Injuries Benefits Trust Fund—Eligibility Requirements—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant met requirements under Labor Code § 4751 for Subsequent Injuries Benefits Trust Fund (SIBTF) eligibility, and returned matter to trial level for further development of record and reanalysis of whether applicant had labor-disabling permanent disability at time of his subsequent injury on 2/20/2008, when WCJ’s decision that applicant was entitled to SIBTF benefits was apparently based on his finding that applicant’s permanent disability was apportionable to non-industrial factors, but WCAB reasoned that finding of apportionment under Labor Code § 4663 is not correlated to SIBTF liability, so while apportionment could previously be made only to labor-disabling condition (former Labor Code § 4750) or to natural progression of preexisting condition (former Labor Code § 4663), under current Labor Code § 4663, apportionment can be made to any factor causing permanent disability, including labor-disabling conditions and natural progression of preexisting condition, plus pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, and, therefore, existence of apportionable permanent disability under current Labor Code § 4663 is not tantamount to finding applicant had labor-disabling permanent disability at time of his industrial injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.09, 31.20[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 8, §§ 8.01, 8.02.]
SUPPLEMENTAL JOB DISPLACEMENT BENIFITS
■ Isabel Sallago, Applicant v. Cintas, Travelers Insurance Company, administered by Sedgwick Claims Management Services, Inc., Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 279
W.C.A.B. No. ADJ9427922—WCAB Panel: Commissioners Razo, Sweeney, Deputy Commissioner Schmitz
Opinion Filed October 18, 2022
Supplemental Job Displacement Benefits—Training Vouchers—WCAB, granting reconsideration and reversing WCJ’s finding, held that applicant was entitled to Supplemental Job Displacement Benefit (SJDB) voucher under Labor Code § 4658.7(b), when applicant suffered 20 percent permanent disability as result of 10/25/2013 right shoulder injury, and defendant made no actual offer of regular, modified, or alternative work, and although defendant asserted that it should be deemed to have offered regular, modified, or alternative work under 8 Cal. Code Reg. § 10133.31(c) based on fact that applicant returned to work following her injury and was placed on modified duty, WCAB reasoned that 8 Cal. Code Reg. § 10133.31(c) deems employer to have offered regular work when employee has lost no time from work or has returned to same job for same employer, that applicant here did lose time from work for several days following date of injury and also from 3/2015 to 8/2015 due to right shoulder surgery, that there was insufficient evidence to support finding that applicant returned to her regular work following her injury, and 8 Cal. Code Reg. § 10133.31(c) makes no mention of modified or alternative work, and that absence of Physician’s Return to Work & Voucher Report did not relieve defendant of its burden to prove offer of regular, modified or alternative work where it was undisputed that defendant knew of its potential liability for SJDB voucher based on applicant’s permanent partial disability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 35.03; Rassp & Herlick, California Workers’ Compensation Law, Ch. 21, § 21.03.]
TEMPORARY DISABILITY
■ Rebecca Gage, Applicant v. County of Sacramento, PSI, Defendant, 2022 Cal. Wrk. Comp. P.D. LEXIS 265, 87 Cal. Comp. Cases --
W.C.A.B. No. ADJ8010054—WCAB Panel: Chair Zalewski, Commissioners Razo, Sweeney
Opinion Filed September 21, 2022
Temporary Disability—Disability Retirement Benefits—WCAB Jurisdiction—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant and defendant were expected to meet and confer to determine plan under Labor Code § 4850.4(f) for repayment of advanced disability pension payments defendant made to applicant (who suffered lumbar spine injury while working as deputy sheriff through 9/14/2011) before ultimately denying her disability retirement application, when WCAB held that (1) initial jurisdiction over establishment of repayment plan under Labor Code § 4850.4(f) vests solely with local agency (in this case, defendant) that issued payment, and local agency must establish administrative appeals remedy to determine repayment plan if parties do not reach agreement, (2) although WCAB had jurisdiction in this matter to impose Labor Code § 5814 penalties for defendant’s delayed payments under Labor Code § 4850.4 because these payments are “compensation” under Labor Code § 3207, WCAB had no jurisdiction to compel applicant to participate in process outlined in Labor Code § 4850.4(f) to determine plan for repayment of advanced disability pension payments after disability retirement application was denied, and (3) while Labor Code § 4850.4(f) permits local agency to pursue litigation to recover advanced payments if repayment is not made according to plan, local agency may not pursue litigation until injured employee has failed to repay advanced payments through agreed-upon repayment plan or through repayment plan adopted after submission of issue to local agency’s administrative appeals remedy; therefore, it was premature for WCJ in this case to address whether “litigation” under Labor Code § 4850.4(f) includes proceedings before WCAB. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 3.113[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.21[6], [7].]
■ Andrew Glick, Applicant v. Knight-Swift Transportation Holdings, Inc., PSI, Defendant, 2022 Cal. Wrk. Comp. P.D. LEXIS 306
W.C.A.B. No. ADJ11799924—WCAB Panel: Commissioner Dodd, Deputy Commissioner Schmitz, Commissioner Razo
Opinion Filed November 2, 2022
Temporary Disability—Exceptions to Two-Year Cap on Benefits—High-Velocity Eye Injuries—WCAB, after granting reconsideration, held that WCJ appropriately exercised his discretion to find that applicant sustained “high-velocity eye injury” when, while crossing street on 11/26/2018, he was struck and thrown nearly 10 feet by motor vehicle traveling approximately 30 mile per hour, entitling him to up to 240 weeks of temporary disability pursuant to Labor Code § 4656(c)(3)(F), when impact of accident to applicant’s body caused applicant to hit ground with sufficient force to fracture both his right and left temporal bones and subsequently develop vision problems as well as eye pain, and although defendant asserted that exception to 104-week cap on temporary disability benefits in Labor Code § 4656(c)(3)(F) pertains only to direct eye injury from object traveling at high velocity and did not apply here because applicant’s eyes were not directly struck by any object, WCAB relied on statute’s language and analysis in Glover v. ACCU Construction, 2009 Cal. Wrk. Comp. P.D. LEXIS 301 (Appeals Board noteworthy panel decision), to conclude that Labor Code § 4656(c)(3)(F) does not require specific impact of high-velocity object with eye rather than impact to person for application of exception to 104-week temporary disability cap, and that evidence of subsequent medical treatment to applicant’s eyes in this case, including surgical repair of eye muscles to correct eye alignment and vision, was sufficient to establish “eye injury” for purposes of Labor Code § 4656(c)(3)(F). [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[2][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.12.]
THIRD-PARTY ACTIONS
■ Miguel Pena, Applicant v. Aqua Systems, Great American Insurance Company, administered by Athens Administrators, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 250, 87 Cal. Comp. Cases --
W.C.A.B. No. ADJ10308959—WCAB Panel: Chair Zalewski, Commissioners Sweeney, Razo
Opinion Filed September 14, 2022
Third-Party Settlements—Approval of Settlement By WCAB—Credit and Attorney’s Fees—WCAB, granting reconsideration and rescinding WCJ’s decision, held that applicant’s workers’ compensation attorney was entitled to 15 percent attorney’s fee to be commuted from far end of applicant’s permanent total disability award, and that defendant was entitled to third-party credit of $474,705.79 applicable against applicant’s life pension (and potentially against award of future medical care) but not against applicant’s attorney’s fee, notwithstanding Stipulation to Credit between applicant and defendant in applicant’s third-party case to immediately apply credit against all unpaid workers’ compensation benefits, when applicant’s attorney was never notified of third-party settlement and did not execute or consent to Stipulation to Credit (which was signed only by defendant’s attorney and applicant’s attorney in civil case), and parties did not obtain WCAB approval prior to executing Stipulation to Credit, and WCAB reasoned that releases purporting to exempt employers from liability for workers’ compensation benefits are prohibited and presumptively invalid unless WCJ determines that they meet requisite criteria for approval of settlements per Labor Code §§ 5000-5006, that Stipulation to Credit in this case was presumptively invalid because there was no evidence WCJ ever inquired into its fairness or adequacy, and since agreement was not signed by applicant’s attorney, it did not meet even minimum statutory requirements for approval, and that because defendant was on notice for entire pendency of workers’ compensation case that applicant was represented by attorney, and failed to seek applicant’s attorney’s agreement to subject attorney’s fee lien “to an immediate award of credit,” there were no legal grounds to allow defendant to apply its third-party credit to attorney’s fee. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 11.25[1], [2], 29.07[1], [2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 12, § 12.04[2].]