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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 2023. The second part of this year yielded several cases addressing instances of workplace violence, including one case involving a third-party attack and another an assault by a co-worker. In the latter case, the WCAB applied the two-prong test in Parks v. W.C.A.B. (1983) 33 Cal. 3d 585, to find the employer liable even though the violent incident, which resulted in applicant’s death, occurred on a public street after applicant finished work. A number of cases that made the Top 25 for this period address issues related to the Subsequent Injuries Benefits Trust Fund (SIBTF), including the threshold requirements for SIBTF eligibility, the statute of limitations for filing claims against SIBTF, and SIBTF’s credit rig
hts. Finally, the list includes a group of cases discussing apportionment of permanent disability between separate injuries per Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, and a case in which the WCAB cites the recent decision in Nunes v. State of California, Department of Motor Vehicles (2023) 88 Cal. Comp. Cases 741 (Appeals Board en banc opinion), to find that the apportionment opinion of applicant’s vocational expert was invalid because the opinion disregarded factors of apportionment described by the medical evaluators.
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 However, WCAB panel decisions are not binding precedent, as are en banc decisions on all other Appeals Board panels and workers’ compensation judges.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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ATTORNEY’S FEES
■Jose Parra, Applicant v. Felix Manufacturing Inc., Fireman’s Fund Insurance Company, Allianz Insurance Company, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 181, petition for writ of review filed 8/28/2023
W.C.A.B. Nos. ADJ4406140 (LAO 0757168), ADJ3079851 (LAO 0757065), ADJ4664450 (LAO 0757166), ADJ3316783 (LAO 0757165), ADJ400663 (LAO 0757067)—WCAB Panel: Commissioner Snellings, Deputy Commissioners Garcia, Schmitz
Workers’ Compensation Appeals Board (Board Panel Decision)
Opinion Filed June 29, 2023
Attorney’s Fees—Depositions—Penalties and Interest—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant’s attorneys were barred by doctrine of laches from obtaining penalties, interest, sanctions, and/or attorney’s fees under Labor Code §§ 5800, 5813, 5814, or 5814.5 for alleged late payment of Labor Code § 5710 deposition fees totaling $2,687.50, which became due in 2001 pursuant to Order Approving Compromise and Release (OACR), but were not paid by defendant until 2018, and WCAB entered new findings that (1) defendant did not establish equitable defense of laches with respect to its liability for penalties and interest on late payment of deposition fees because it did not demonstrate that applicant’s attorneys’ tardy request for payment 17 years after payment was due prejudiced defendant, there was evidence defendant’s own conduct contributed to delay in payment, and determinations regarding defendant’s liability for penalties and interest on late payment were rooted in statutes rather than doctrine of laches, (2) applicant’s attorneys were not entitled to Labor Code § 5814 penalties because their 2018 penalty claim for delayed payment of 2001 deposition fee award was barred by two-year statute of limitations in Labor Code § 5814(g), (3) because attorney’s fees under Labor Code § 5814.5 are predicated on Labor Code § 5814 penalty award, Labor Code § 5814.5 fees were not permissible in this case, (4) defendant’s conduct did not justify imposition of sanctions under Labor Code § 5813, which requires showing of bad-faith actions or intentional delay tactics, where applicant’s attorneys waited for 17 years after issuance of OACR to request payment of deposition fees, and defendant did not object to payment but instead paid requested fees along with self-imposed 10 percent penalty, (5) applicant’s attorneys were entitled to Labor Code § 5800 interest on $2,687.50 fee award, calculated from issuance of OACR to date of payment, as Labor Code § 5710 deposition attorney’s fees are “compensation” for purposes of Labor Code § 5800, and interest on compensation awards is mandatory, and (6) defendant was not entitled to reimbursement of $286.75 self-imposed penalty already paid even though no penalty was owed, but rather applicant’s attorneys must remit $286.75 self-imposed penalty to applicant and defendant may seek credit under Labor Code § 4909 against future compensation owed.
COVID-19 PANDEMIC
■David Gaska (deceased), Joan Gaska, Erica Gray, and Gavin Neil Belcher, Applicants v. Searles Valley Minerals, XL Specialty Insurance, administered by Tristar Risk Management, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 287
W.C.A.B. No. ADJ14258730—WCAB Panel: Commissioners Capurro, Snellings, Chair Zalewski
Opinion Filed October 13, 2023
Injury AOE/COE—Substantial Medical Evidence—COVID-19—WCAB, granting reconsideration, rescinded decision in which WCJ found that decedent sustained injury in form of COVID-19 while employed by defendant as buyer on 12/4/2020, resulting in his death on 1/8/2021, and returned matter to WCJ for development of record and further proceedings, when WCAB found that substantial medical evidence did not support finding of injury AOE/COE in form of COVID-19, that to constitute substantial medical evidence, there must be some solid basis in medical report for doctor’s ultimate opinion, and WCAB may not blindly accept medical opinion which lacks solid underlying basis, that in this matter, qualified medical evaluator’s (QME) report upon which WCJ relied to find compensable injury was not substantial evidence because QME did not offer any conclusion as to how likely it was that applicant’s job created environmental conditions which causally contributed to his COVID-19 exposure, and his conclusion that applicant was exposed at work, without factual basis, did not support finding of injury AOE/COE as it was based on surmise, speculation, conjecture, or guess.
■Thomas Butts, Applicant v. Butts & Johnson, Sentinel Insurance Company administered by The Hartford, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 194
W.C.A.B. No. ADJ14033416—WCJ Kathleen A. Chassion (SAL); WCAB Panel: Commissioners Razo, Snellings, Dodd
Opinion Filed July 3, 2023
Injury AOE/COE—Special Risk Exception to Non-Compensability of Non-Occupational Diseases—COVID-19—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant suffered industrial injury in form of COVID-19 and its sequelae while working as workers’ compensation applicant’s attorney on 3/12/2020, when WCAB reasoned that although non-occupational diseases such as COVID-19 are generally not considered work-related due to their prevalence in community and difficulty in determining their origin, exception to general rule exists if employee, by virtue of their employment, is subjected to increased risk of exposure as compared with that of general public, that workers’ compensation applicant’s attorneys are subjected to increased risk of contracting COVID-19 virus due to routine and necessary meetings with their clients in small, enclosed rooms at WCAB district offices designated for such meetings, that, additionally, medical evidence in this matter indicated that it was reasonably medically probable, given onset of applicant’s symptoms, that applicant contracted COVID-19 on 3/12/2020 while meeting with symptomatic client in small conference room of WCAB during Mandatory Settlement Conference, and that WCJ properly found compensable injury given applicant’s special risk of contracting COVID-19 and reasonable medical probability of industrial causation.
INJURY AOE/COE
■Anabelle Shepheard, Applicant v. Laddaran Management Corporation, Employers Preferred Insurance Company, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 274
W.C.A.B. No. ADJ13173519—WCAB Panel: Chair Zalewski, Commissioners Razo, Capurro
Injury AOE/COE—Necessity of Medical Evidence—Credibility Determinations—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant did not sustain industrial back injury while employed by defendant as cook on 12/15/2019, and returned matter to presiding WCJ for reassignment to new WCJ and trial de novo, when WCJ’s finding of no injury was based on determination that applicant was not credible witness regarding mechanism of her injury and that medical evidence finding injury AOE/COE was not substantial evidence because claimed mechanism of injury was not supported by applicant’s trial testimony, but WCAB rejected WCJ’s credibility determinations, and further found that WCJ improperly substituted her own opinion of applicant’s medical diagnosis over medical opinions of doctors in finding that applicant did not sustain injury AOE/COE, noting that where issues are exclusively matter of scientific or medical knowledge, expert opinion is essential to support judicial findings, and lay testimony or opinion does not constitute substantial evidence on these issues.
■Cecilia Duran, Applicant v. County of Imperial, PSI, administered by Athens Administrators, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 257
W.C.A.B. No. ADJ14966902—WCJ Linda F. Atcherley (SDO); WCAB Panel: Commissioner Snellings, Chair Zalewski, Commissioner Capurro
Opinion Filed September 27, 2023
Injury AOE/COE—Substantial Medical Evidence—WCAB, denying reconsideration, held that reporting of applicant’s treating neurosurgeon was substantial evidence under standards in Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), to support WCJ’s finding that accepted industrial head contusion suffered by applicant on 11/18/2020 while employed as account clerk, accelerated progression of her non-industrial brain cancer/meningioma and, therefore, brain cancer constituted injury AOE/COE, when treating physician provided detailed and well-reasoned deposition testimony explaining his opinion that shelf falling on applicant’s head caused injury consistent with his assessment of tumor growth, and that physical trauma of impact contributed to and accelerated growth.
■Eiren Bradford, Applicant v. R & D Westwing, Inc., Travelers Property Casualty Company of America, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 264
W.C.A.B. No. ADJ12116378—WCAB Panel: Commissioners Snellings, Dodd, Chair Zalewski
Opinion Filed September 28, 2023
Injury AOE/COE—Assaults by Third Parties—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant’s injuries did not arise out of her employment because they were sustained during personally-motivated attack, and instead determined that applicant sustained injury AOE/COE to her left eye (with other claimed body parts being deferred) while employed as cashier on 3/27/2019, when WCAB reasoned that applicant was attacked during workday while taking authorized break on employer’s premises, and applicant’s co-worker had supplied assailant with information that allowed assailant to find applicant by disclosing applicant’s whereabouts to unknown caller, making applicant’s employment circumstances contributing cause of attack.
■Gabriel Mora (Deceased), Applicant v. Custom Fresh Cuts, Inc., The Hartford, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 244, 88 Cal. Comp. Cases 1214
W.C.A.B. No. ADJ11808374—WCAB Panel: Chair Zalewski, Commissioner Razo, Deputy Commissioner Garcia
Opinion Filed September 14, 2023
Injury AOE/COE—Assault By Co-Worker—Special Risk Exception to Going and Coming Rule—WCAB, granting reconsideration and rescinding WCJ’s decision, held that preponderance of evidence established that decedent’s death arose out of and in course of his employment, when decedent suffered fatal injury on 2/9/2017 when he was shot and killed by co-worker on public street just after finishing work and exiting employer’s parking lot, and WCAB reasoned that (1) to prove injury arose out of employment, law only required applicant to show “some work connection” between decedent’s employment and his shooting death at hands of co-worker, and did not require proof that specific issue (i.e., loan from co-worker to decedent) directly caused decedent’s death, (2) evidence in this matter supported strong and reasonable inference that decedent’s murder was connected to his employment because shooter had previously loaned money to decedent to fund decedent’s new business, which decedent ultimately transferred to employer, with decedent retained as managing employee and shooter retained as independent contractor, and decedent acting as “go-between” for shooter and employer with respect to shooter’s payment, (3) employer did not adequately establish any personal relationship between decedent and shooter outside of work relationship, and (4) injury was not barred by going and coming rule even though decedent was engaged in commute at time of shooting, because decedent was subjected to special risk based on two-prong test in Parks v. W.C.A.B. (1983) 33 Cal. 3d 585, 660 P.2d 382, 190 Cal. Rptr. 158, 48 Cal. Comp. Cases 208, where decedent would not have been at location of injury’s occurrence but for his employment, and, with respect to second prong of Parks, WCAB determined that decedent was exposed to greater risk than general public based on his regular use of employer’s parking lot, and increased likelihood of encountering other employee’s in or near parking lot, which ultimately subjected decedent to ambush by co-worker.
INSURANCE COVERAGE
■Daniel Hunter, Applicant v. Louisiana Workers’ Compensation Corporation, Insurance Company of North America/ACE USA, Denver Broncos, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 300
W.C.A.B. No. ADJ9078233—WCAB Panel: Commissioners Razo, Palugyai, Chair Zalewski
Opinion Filed October 16, 2023
Insurance Coverage—Construction of Policy—WCAB, denying reconsideration, affirmed arbitrator’s decision that insurance policy issued by Louisiana Workers’ Compensation Corporation (LWCC) did not have clear and legal exclusion of coverage for employees working temporarily out of state, and because terms of policy were unclear, policy covered football players with Shreveport Pirates who were injured while playing football for team while outside of state, when WCAB, citing Watkins v. New York Giants, 2015 Cal. Wrk. Comp. P.D. LEXIS 291 (Appeals Board noteworthy panel decision), reasoned that insurance policy must be clear in describing exclusions and limitations on coverage, and in absence of clear exclusions, policy will be read to cover all injuries, that nowhere in LWCC policy was it specifically stated that policy did not cover extraterritorial injuries filed in state where injury occurred, that it was not error to read policy as extending coverage to injuries claimed by applicant while playing professional football for Shreveport Pirates and temporarily working in California, and that circumstances in this matter were distinguishable from those in Stabler v. KS Adams, 2022 Cal. Wrk. Comp. P.D. LEXIS 129 (Appeals Board noteworthy panel decision), because insurance policy in Stabler did not provide for direct or primary liability as did LWCC policy.
JURISDICTION
■Christian Luiz, Applicant v. Masonite, Northern Circle Indian Housing Authority, United Native Housing Development Corporation, Amerind, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 209, petition for writ of review denied 10/4/2023
W.C.A.B. No. ADJ11269850—WCAB Panel: Commissioners Snellings, Razo, Chair Zalewski
Opinion Filed August 4, 2023
WCAB Jurisdiction—Tribal Entities—Sovereign Immunity—WCAB, granting reconsideration and reversing WCJ’s finding, held that defendant United Native Housing Development Corporation (United Native Housing) enjoyed sovereign immunity and was not subject to WCAB jurisdiction with respect to applicant’s claim for cumulative injuries to his neck and upper extremity ending on 3/30/2018, while employed by tribal entity Northern Circle Indian Housing Authority (Northern Circle), and while allegedly employed by United Native Housing, which was entity formed by Northern Circle for purposes of accessing funds that were not available to tribal entities, when WCAB reasoned that where applicant brings workers’ compensation claim against “tribally affiliated entity,” as here, burden is on tribal entity to establish that it enjoys same sovereign immunity as Native American tribe itself, pursuant to five-factor test in People v. Miami Nation Enterprises (2016) 2 Cal. 5th 222, 386 P.3d 357, 211 Cal. Rptr. 3d 837, and WCAB, weighing these five factors and mindful that each case requires overall assessment with no single factor being dispositive, concluded that preponderance of evidence established United Native Housing’s sovereign immunity notwithstanding lack of intent for United Native Housing to share sovereign immunity with tribes and with Northern Circle, where other four Miami factors weighed in favor of sovereign immunity based on United Native Housing’s method of creation, its purpose, Northern Circle’s control over United Native Housing, and financial relationship between two entities.
MEDICAL-LEGAL PROCEDURE
■Adriana Pacheco, Applicant v. Calico Building Services, Inc., Berkshire Hathaway Home State Insurance Company, dba Berkshire Hathaway Home State Companies, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 277
W.C.A.B. No. ADJ11662102—WCAB Panel: Chair Zalewski, Commissioners Dodd, Razo
Opinion Filed October 9, 2023
Medical-Legal Procedure—Exchange of Information—Remedies for Violation of Labor Code § 4062.3(b)—WCAB, granting removal, affirmed WCJ’s finding that applicant’s letter to qualified medical evaluator (QME) was not served on defendant 20 days in advance as required under Labor Code § 4062.3(b), but contrary to WCJ, WCAB concluded that applicant’s violation of Labor Code § 4062.3(b) did not entitle defendant to obtain replacement QME, when WCAB reasoned that it has wide discretion to determine what, if any, remedy is appropriate for violation of Labor Code § 4062.3(b), based on analysis of factors set forth in Suon v. California Dairies (2018) 83 Cal. Comp. Cases 1803 (Appeals Board en banc decision), and, weighing Suon factors in this matter, WCAB determined that there was no evidence QME’s confusion of issues resulted from applicant’s letter or caused prejudice to defendant, that parties are able to object to any opinions by QME that exceed his scope of work, and WCJ may develop record on these issues, that information provided by applicant’s letter was not unreasonable or irrelevant to QME’s evaluation, and that prejudicial impact of letter did not outweigh its probative value to degree warranting dismissal of QME, especially given length of time QME has reported in this case and fact that his years-long involvement adds considerably to his ability to evaluate applicant’s medical issues.
MEDICAL TREATMENT
■Alicia Rodriguez, Applicant v. Dynamic Edge Consulting, Travelers Property Casualty Company of America, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 289
W.C.A.B. No. ADJ10884813—WCAB Panel: Chair Zalewski, Commissioner Capurro, Deputy Commissioner Schmitz
Opinion Filed October 20, 2023
Medical Treatment—Home Healthcare Assessment—Employer’s Control Over Treatment—Employee’s Refusal of Treatment—WCAB, granting reconsideration, rescinded decision in which WCJ ordered applicant account executive who suffered industrial brain injury on 4/27/2017 to participate in home health assessment with provider selected by defendant from its medical provider network (MPN), and WCAB held that Labor Code § 4056, and not Labor Code § 4050, was applicable provision to determine whether defendant could compel applicant to undergo home healthcare assessment by defendant’s selected provider, where applicant had self-procured home health assessment, which was treatment authorized by defendant, from nurse case manager outside defendant’s MPN, and WCAB reasoned that issue was not whether defendant was obligated to pay for applicant’s self-procured assessment, but whether defendant could compel applicant to undergo home health assessment by its selected provider, that under Labor Code § 4056, employee is barred from receiving compensation if employee unreasonably refuses or delays seeking medical treatment offered by employer and risk of treatment is insignificant given employee’s medical condition, that defendant here did not carry its burden under Labor Code § 4056 by demonstrating basis to compel applicant to undergo another home health assessment because defendant did not establish that risk of treatment was insignificant in light of applicant’s medical condition, that while applicant was permitted under Labor Code § 4605 to self-procure medical report from consulting physician at her own expense, treating physician must review report and indicate whether he agrees that home health treatment is reasonable and necessary, and that if treating physician opines that home healthcare is reasonable and necessary, parties must then follow appropriate procedures in Labor Code § 4610 et seq. and Labor Code § 4614 et. seq., as to whether defendant should authorize and pay for recommended treatment.
PERMANENT DISABILITY
■Juan Caravez, Applicant v. Red Bluff Meadows and National Union Fire Insurance Company, administered by American International Group, Inc., Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 314
W.C.A.B. Nos. ADJ9626208, ADJ11089339—WCAB Panel: Chair Zalewski, Deputy Commissioner Schmitz, Commissioner Capurro
Opinion Filed October 23, 2023
Permanent Disability—Apportionment—Benson Exception—Substantial Evidence—WCAB, granting reconsideration, rescinded WCJ’s combined award of 64 percent permanent disability for applicant’s two industrial back injuries, when WCJ’s combined award was issued based on his finding that combined award was required under Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, where agreed medical examiner’s (AME) apportionment opinion was not substantial evidence to support apportionment of permanent disability as between applicant’s two injuries, and although WCAB agreed that AME’s opinion was not substantial evidence and noted that, under Benson, injured worker may be entitled to combined permanent disability award when evaluating physician cannot parcel out percentages of permanent disability caused by separate injuries, WCAB determined that fact that physician’s opinions regarding apportionment are not substantial evidence is not evidence that physician cannot parcel out disability caused by each injury, that when there is no substantial evidence in existing record upon which to base determination, WCAB has duty to further develop record, and that in this case, there was insufficient evidence regarding apportionment, and record required development on this issue, preferably by obtaining supplemental report from AME clarifying his apportionment opinions and addressing issue of whether he is able to parcel out disability caused by applicant’s prior low back injury and two injuries currently at issue.
■Andres Vizcarra, Applicant v. Master Toys and Novelties, Inc., Tokio Marine America, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 311
W.C.A.B. Nos. ADJ7810002, ADJ7982917—WCAB Panel: Commissioner Snellings, Deputy Commissioner Schmitz, Commissioner Capurro
Opinion Filed November 21, 2023
Permanent Disability—Apportionment—Benson Exception—WCAB, granting removal, rescinded WCJ’s decision vacating submission of matter for development of record regarding apportionment of applicant’s permanent disability based on her finding that applicant’s evaluating physicians did not adequately address apportionment of permanent disability as between applicant’s cumulative and specific injuries pursuant to Labor Code § 4663(c), when evaluating physicians thoroughly reviewed record and concluded that, based upon reasonable medical probability, applicant’s disabilities were inextricably intertwined and could not, without speculation, be apportioned, and WCAB reasoned that, per Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, there are circumstances when evaluating physician cannot parcel out approximate percentages to which each distinct industrial injury causally contributed to employee’s overall permanent disability, and in those instances combined award of permanent disability is justified, that medical determination that apportionment would be speculative, if based on substantial evidence and expressed to reasonable medical probability, is itself valid apportionment determination, assuming physician considers all appropriate factors of apportionment, that WCJ here erroneously believed physicians’ inability to parcel out percentages of disability caused by each of applicant’s injuries equated to failure to make apportionment determination, but evaluating physicians in this case demonstrated familiarity with record and discussed rationale for why Benson apportionment would be speculative and, therefore, made valid apportionment determination under Labor Code § 4663(c), and that because physicians’ apportionment analyses satisfied requirements of Labor Code § 4663(c), development of record to augment their respective apportionment opinions was unnecessary.
■Hoda Khammash, Applicant v. State of California Department of Transportation, legally uninsured, State Compensation Insurance Fund, Adjusting Agency, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 307
W.C.A.B. Nos. ADJ7358979, ADJ7183934, ADJ7358844, ADJ7358858—WCAB Panel: Commissioners Capurro, Dodd, Chair Zalewski
Permanent Disability—Apportionment—Benson Exception—WCAB, granting reconsideration, amended WCJ’s decision to clarify that applicant senior engineer was entitled to combined award of permanent total disability for industrial orthopedic and psychiatric injuries incurred on 4/22/2009, 1/19/2010, 3/23/2010, and during period 12/1/2007 to 4/22/2009, pursuant to Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, notwithstanding orthopedic agreed medical examiner’s (AME) apportionment of applicant’s orthopedic disability between her four dates of injury, when psychiatric AME was unable to parcel out percentages to which each of applicant’s industrial injuries contributed to her psychiatric disability, and WCAB found that where some aspects of industrially-caused permanent disability from separate industrial injuries cannot be parceled out because disability is inextricably intertwined, combined permanent disability award must issue even though other aspects of industrially-caused permanent disability from those injuries can be parceled out with reasonable medical probability.
Permanent Disability—Rating—Combining Multiple Disabilities—WCAB, after granting reconsideration, affirmed WCJ’s award of permanent total disability to applicant senior engineer who suffered industrial injury to multiple body parts on 4/22/2009, 1/19/2010, 3/23/2010, and during period 12/1/2007 to 4/22/2009, and determined that WCJ properly added applicant’s psychiatric impairment to her non-psychiatric impairments in calculating permanent disability based on opinion of psychiatric agreed medical examiner (AME), when WCAB found that psychiatric AME did not confine his analysis simply to assertion of “synergy” as defendant contended, and that he adequately explained rationale for why applicant’s significant and persistent psychiatric disability should be added to non-psychiatric disabilities, and how psychiatric injuries affected applicant’s functional capacity differently than non-psychiatric injuries.
■Linda Becerra, Applicant v. Conifer Health Solution, PSI, administered by Sedgwick Claims Management Services, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 255, 88 Cal. Comp. Cases 1183, aff’d in part and amended in part by Becerra v. Conifer Health Solution, 2023 Cal. Wrk. Comp. P.D. LEXIS 321
W.C.A.B. No. ADJ8185944—WCAB Panel: Chair Zalewski, Commissioners Capurro, Dodd
Opinion Filed September 18, 2023
Permanent Disability—Apportionment—Substantial Evidence—WCAB, granting reconsideration, rescinded WCJ’s apportioned permanent disability award and held that applicant who suffered industrial orthopedic, heart and psychiatric injuries while employed as financial assistant from 4/20/2002 through 11/22/2011 was entitled to unapportioned award of 92 percent permanent disability, when WCAB determined that apportionment analyses described by four qualified medical evaluators (QME) were not substantial evidence to support apportionment under Labor Code § 4663 and Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion); specifically, WCAB found that (1) orthopedic QME did not adequately describe applicant’s injuries and how and why those injuries were responsible for 80 percent of applicant’s present levels of disability, (2) rheumatology QME improperly aggregated applicant’s multiple injuries into single factor of apportionment and assessed percentage of causation to that single factor without substantive discussion of how and why it resulted in present permanent disability, or how specific percentages were determined, (3) internal medicine QME apportioned disability from applicant’s hypertension and atrial fibrillation to nonindustrial stress and obesity, but did not sufficiently specify how and why each factor was currently contributing to applicant’s permanent disability, or how doctor arrived at stated apportionment percentages, and (4) psychiatric QME did not state opinions to reasonable medical probability and did not explain how and why identified factors of apportionment contributed to applicant’s present permanent disability or how percentages were determined.
■Rigoberto Gonzalez, Applicant v. Team Infinity and Public Service Mutual Insurance Company, administered by OccuSure Claims Services, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 205, 88 Cal. Comp. Cases 1203
W.C.A.B. No. ADJ7263865—WCAB Panel: Commissioners Capurro, Dodd, Chair Zalewski (concurring, but not signing)
Opinion Filed July 11, 2023
Permanent Disability—Apportionment—WCAB, granting reconsideration, rescinded WCJ’s unapportioned award of 100 percent permanent disability for cumulative injuries to applicant’s heart, upper and lower extremities and spine during period 8/28/2001 through 3/25/2010, and remanded matter to WCJ for further proceedings and new decision, when all physicians evaluating applicant’s condition apportioned permanent disability to nonindustrial factors pursuant to Labor Code § 4663, and although applicant’s vocational expert discussed factors of apportionment described by medical evaluators, he ultimately concluded that applicant was 100 percent permanently disabled due to his industrial cumulative injury, and WCAB, citing its recent decision in Nunes v. State of California, Department of Motor Vehicles (2023) 88 Cal. Comp. Cases 741 (Appeals Board en banc opinion), explained that under Labor Code § 4663, it is physician, not vocational expert, that must make apportionment determination based on standards described in Labor Code § 4663(c), that there is no statutory authority permitting collateral sources of expert opinion as to apportionment, nor are other standards of apportionment authorized, that “vocational apportionment” offered by non-physician is invalid, and that apportionment opinion of applicant’s vocational expert was not substantial evidence where opinion disregarded factors of apportionment described by medical evaluators; WCAB also found that report of defendant’s vocational expert was not substantial evidence as it was based on speculation and conjecture regarding applicant’s condition, and that, under circumstances in this case, further development of medical record was necessary regarding disability caused by applicant’s industrial injury.
■Thomas Gaul, Applicant v. Department of Corrections Inmate Claims, legally uninsured and adjusted by State Compensation Insurance Fund, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 229, 88 Cal. Comp. Cases 1196
W.C.A.B. Nos. ADJ1655822 (LBO 0397196), ADJ8188338—WCJ Simon Hovakimian (LBO); WCAB Panel: Commissioners Capurro, Palugyai, Razo (concurring, but not signing)
Opinion Filed September 5, 2023
Permanent Disability—Offers of Work—Adjustment in Compensation for Prison Inmates—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant prison inmate was entitled to 15 percent increase in permanent disability benefits in accordance with Labor Code § 4658(d), based on defendant’s failure to make return-to-work offer after applicant suffered industrial injuries, and WCAB rejected defendant’s reliance on Scott v. California Department of Corrections, 2010 Cal. Wrk. Comp. P.D. LEXIS 152 (Appeals Board noteworthy panel decision), for its position that provisions of Labor Code § 3370(a)(5) preclude application of Labor Code § 4658(d) increase on benefits awarded to state prison inmates who sustain injury while incarcerated, noting that Scott is not binding precedent, and that Labor Code § 3370(a)(5) restricts inmate workers’ average weekly earnings to statutorily prescribed minimum amount prescribed in Labor Code § 4453, but does not restrict amount of permanent disability benefits as computed in Labor Code § 4658(d).
PSYCHIATRIC INJURY
■Debra Smith, Applicant v. Calistoga Elementary School, North Bay Schools Insurance Authority, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 202, petition for writ of mandate denied 6/28/2023
W.C.A.B. No. ADJ10945733—WCAB Panel: Commissioner Snellings, Deputy Commissioner Schmitz, Chair Zalewski
Opinion Filed June 20, 2023
Psychiatric Injury—Violent Acts—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant’s injuries did not result from “violent act” within meaning of Labor Code §§ 4660.1(c)(2)(a) and 3208.3(b)(2), when WCAB, citing Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393 (Appeals Board en banc opinion), observed that “violent act” has been defined as “an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening,” that injuries in this case, which included fractured elbow and contusions to applicant’s hands, occurred when applicant, while employed as physical education teacher on 9/23/2015, unexpectedly collided with grammar school student as she exited teacher’s restroom, and was knocked onto concrete walkway, and WCAB found that although applicant was taken by surprise by incident and was hit hard enough to be knocked off her feet to concrete ground, force of being knocked over by young student could not be characterized as involving strong physical force, extreme or intense force, or act that was vehemently or passionately threatening, as described in prior panel decisions in which “violent act” was found, but was more akin to incidents described in panel decisions where no violent act was found.
SERIOUS AND WILLFUL MISCONDUCT
■Maria Scirone, Applicant v. Conejo Valley Unified School District, LWP Claims Glendale, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 208, 88 Cal. Comp. Cases 1115
W.C.A.B. No. ADJ11080016—WCJ Dean Stringfellow (VNO); WCAB Panel: Commissioners Razo, Palugyai, Chair Zalewski (concurring, but not signing)
Opinion Filed July 21, 2023
Serious and Willful Misconduct of Employer—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant did not establish injuries she incurred on 4/6/2017 when she tripped and fell over student’s backpack in classroom while employed as school home economics teacher resulted from employer’s serious and willful misconduct under Labor Code §§ 4553 and 4553.1, when applicant relied on alleged violation of maximum number of occupants allowed in her classroom per California Building Code and violation of minimum square footage required in Consumer Home Economic labs per California Code of Regulations to support her claim that defendant was liable for serious and willful misconduct, but WCAB reasoned that it was unclear that cited maximum number of occupants and minimum square footage applied to applicant’s classroom, that Labor Code § 4553.1 specifically requires violation of safety order, and it was not clear that applicant’s citation to California Building Code and Code of Regulations were safety orders within meaning of Labor Code § 4553.1, that even if maximum number of occupants and minimum square footage were applicable safety orders, there was no evidence to support finding that safety order, and conditions making safety order applicable, were known to and violated by employer or that condition was obvious or created probability of serious injury, or that employer’s failure to correct condition constituted reckless disregard for probable consequences, as required under Labor Code § 4553.1 to support finding of serious and willful misconduct, and that while applicant had legitimate concerns regarding her overcrowded classroom with no place for students’ personal belongings, evidence did not support finding of serious and willful misconduct by her employer.
SUBSEQUENT INJURIES BENEFITS TRUST FUND
■Robert Roberts, Applicant v. The Perkins and Will Group, Subsequent Injuries Benefits Trust Fund, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 281
W.C.A.B. No. ADJ7065881—WCAB Panel: Chair Zalewski, Commissioners Razo, Snellings
Opinion Filed October 11, 2023
Subsequent Injuries Benefits Trust Fund—Statute of Limitations—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant’s 8/2/2019 claim for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits was untimely, when WCAB, citing Subsequent Injuries Fund v. W.C.A.B. (Talcott) (1970) 2 Cal. 3d 56, 465 P.2d 28, 84 Cal. Rptr. 140, 35 Cal. Comp. Cases 80, reasoned that if injured employee knew or could reasonably be deemed to know there will be substantial likelihood of entitlement to SIBTF benefits before expiration of five years from date of injury, limitation period to file SIBTF claim is five years from injury date, and that knowledge standard for purposes of statute of limitations is constructive knowledge and not subjective knowledge as asserted by applicant, and WCAB concluded that WCJ correctly determined applicant should have known of his likelihood of SIBTF entitlement by time of 2012 Stipulated Award under which he received 41 percent permanent disability for 2007 injury and 53 percent permanent disability for 2009 injury, which was sufficient to meet SIBTF eligibility threshold, and that because applicant had knowledge of probable SIBTF entitlement within five years of his subsequent injury he was required to file SIBTF application within five years of that date and failed to do so.
■Nancy Vargas, Applicant v. Subsequent Injuries Benefits Trust Fund, Defendant, 2023 Cal. Wrk. Comp. P.D. LEXIS 284, petition for writ of review filed 12/4/2023
W.C.A.B. No. ADJ11362885—WCAB Panel: Commissioner Snellings, Chair Zalewski, Commissioner Capurro
Subsequent Injuries Benefits Trust Fund—Credit Rights—WCAB, denying reconsideration, affirmed WCJ’s finding that Subsequent Injuries Benefits Trust Fund (SIBTF) had burden of proving its entitlement to credit under Labor Code § 4753 for social security disability and/or other retirement benefits received by applicant for preexisting disability, and that SIBTF did not meet its burden in this matter because SIBTF did not establish applicant’s disability retirement benefits were received for preexisting disability, when WCAB harmonized terms of Labor Code § 4753, providing that subsequent injuries benefits “shall be reduced” based on monies received by injured employee for preexisting disability, with provisions of Labor Code § 4751, which state that permanently partially disabled employees who sustain subsequent compensable injuries resulting in additional permanent partial disability “shall be paid” compensation by SIBTF, and WCAB concluded that because both statutes use same mandatory language as to reduction or payment of compensation
, Labor Code § 4753 should be read to provide that once subsequently injured employee meets longstanding burden (as imposed by case law) of proving entitlement to subsequent injuries benefits, burden of proofs shifts to SIBTF to establish its entitlement to reduction of those benefits, and that since record here lacked medical reporting showing any disability or impairment to any of applicant’s body parts other than subsequently-injured right foot, assumption that some portion of applicant’s social security disability benefits awarded for applicant’s total disability were for preexisting disability was without foundation.
■Heigh, Applicant v. Subsequent Injuries Benefits Trust Fund, Defendant, 2023 Cal. Wrk. Comp. P.D. LEXIS 188, aff’d by Heigh v. Subsequent Injuries Benefits Trust Fund, 2023 Cal. Wrk. Comp. P.D. LEXIS 269
W.C.A.B. No. ADJ12253162—WCAB Panel: Commissioners Dodd, Razo, Chair Zalewski (concurring, but not signing), petition for writ of review filed 11/22/2023
Opinion Filed July 14, 2023
Subsequent Injuries Benefits Trust Fund—Threshold Requirements—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant who claimed industrial injury to his lumbar spine and right elbow while employed as custodian on 7/26/2015 did not qualify for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits because he did not meet 35 percent permanent disability threshold from subsequent industrial injury alone as required by Labor Code § 4751(b), and WCAB substituted new finding that applicant met 35 percent threshold in Labor Code § 4751(b), but deferred issue of whether applicant met remaining eligibility requirements for SIBTF benefits, when WCAB reasoned that WCJ erroneously considered apportionment in his calculation of applicant’s subsequent permanent disability, contrary to holding in Bookout v. W.C.A.B. (1976) 62 Cal. App. 3d 214, 132 Cal. Rptr. 864, 41 Cal. Comp. Cases 595, that permanent disability from subsequent injury must be calculated without apportionment, and WCAB found that applicant’s subsequent permanent disability without apportionment was 35 percent, based on reporting of panel qualified medical evaluator and parties’ stipulation, and that further development of record is required to determine whether applicant meets remaining eligibility requirements for SIBTF benefits.
■Ronald Humphrey, Applicant v. Subsequent Injuries Benefits Trust Fund, Defendant, 2023 Cal. Wrk. Comp. P.D. LEXIS 234, petition for reconsideration dismissed 12/4/2023
W.C.A.B. No. ADJ7016841—WCAB Panel: Commissioners Dodd, Capurro, Snellings
Opinion Filed September 8, 2023
Subsequent Injuries Benefits Trust Fund—Statute of Limitations—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant’s 8/22/2019 claim for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits was untimely, and returned matter to trial level for further proceedings, when WCAB, citing Subsequent Injuries Fund v. W.C.A.B. (Talcott) (1970) 2 Cal. 3d 56, 465 P.2d 28, 84 Cal. Rptr. 140, 35 Cal. Comp. Cases 80, reasoned that relevant analysis pertaining to timeliness of applicant’s SIBTF claim was whether applicant filed claim within reasonable time after he learned from WCAB’s findings on issue of permanent disability that SIBTF had probable liability, that WCJ in this matter incorrectly determined that 10/10/2012 Order Approving Compromise and Release (OACR) constituted WCAB finding on issue of permanent disability sufficient to put applicant on notice of SIBTF’s probable liability, and that, in fact, OACR did not constitute findings with respect to permanent disability sufficient to notify applicant of potential SIBTF claim and start running of statute of limitations, because WCAB’s power to determine adequacy of Compromise and Release agreement and issue award based on agreement is not equivalent to finding of permanent disability.
STIPULATIONS
■Lynne Shaw, Applicant v. Automobile Club of Southern California, Hartford Insurance, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 253
W.C.A.B. No. ADJ8996318—WCAB Panel: Commissioners Snellings, Capurro, Razo
Opinion Filed September 22, 2023
Stipulations—Enforcement of Medical Treatment Award—WCAB, granting reconsideration, amended WCJ’s decision to indicate that defendant did not timely defer utilization review of applicant’s requests for medical treatment, but WCAB concurred with WCJ’s findings that medical treatment requested for applicant’s knee pain was compensable consequence of industrial injuries to her cervical spine and wrists, previously resolved by 2016 Stipulated Award, that addendum to Stipulated Award could not validly limit future medical care to exclude medical treatment for compensable consequence body parts, and that WCAB has jurisdiction to award treatment for new, compensable consequence condition that is not part of original award even if treatment request is for condition arising more than five years from date of injury, because future medical care in Stipulated Award must always necessarily include future medical care for treatment later found to be compensable consequence of original industrial injury, and this right cannot be bargained away by parties.
TEMPORARY DISABILITY
■Nannette (Nanette) Cain, Applicant v. California Department of Forestry and Fire Protection, legally uninsured, administered by State Compensation Insurance Fund, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 322
W.C.A.B. Nos. ADJ16642926 (MF), ADJ16642919, ADJ16642843, ADJ10791190—WCJ John E. Durr (SLO); WCAB Panel: Commissioner Capurro, Chair Zalewski, Commissioner Snellings
Opinion Filed November 20, 2023
Temporary Disability—Amount of Benefit—Differential with Industrial Disability Leave—WCAB, denying reconsideration, affirmed WCJ’s decision that WCAB did not have authority to pay applicant differential between his temporary disability indemnity and his industrial disability leave (IDL) merely because his temporary disability rate produced higher payment than IDL, when WCAB reasoned that, pursuant to Government Code § 19872(a), disabled employee may not receive temporary disability indemnity, sick leave or annual leave with pay for any period for which employee receives IDL, and, therefore, though WCAB had jurisdiction to award temporary disability at conclusion of IDL, it could not award temporary disability indemnity at higher rate during period applicant was entitled to IDL at lower rate.