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California Workers' Comp Case Roundup (8/25/2012): Payments to Attend Medical Evaluation Was Not Payment of Temporary Disability

August 25, 2012 (10 min read)
CALIFORNIA COMPENSATION CASES
Vol. 77 No. 7 July 2012
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review
CONTENTS OF THIS ISSUE
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Appellate Court Compensation Case
Meeks Building Center v. W.C.A.B. (Najjar, Salem), 77 Cal. Comp. Cases 615
Temporary Disability—104-Week Limitation—Court of Appeal, affirming WCAB decision, held that payment to applicant under Labor Code § 4600(e)(1) to compensate him for wage loss due to attendance at medical-legal qualified medical examination regarding his injuries to low back, neck, and left shoulder was not payment of temporary disability…
Appellate Court Case Not Originating With Appeals Board
Collins (James) v. Union Pacific Railroad Co., 77 Cal. Comp. Cases 622
Third Party Actions—Exclusive Remedy Rule—Federal Employers' Liability Act—General and Special Employment—Court of Appeal, affirming judgment of trial court, held that trial court did not err in determining that plaintiff could seek recovery against defendant under Federal Employers’ Liability Act after accepting workers’ compensation benefits through his general employer, when Court of Appeal found that…
Third Party Actions—Attorney's Fees—Workers' Compensation Liens—Court of Appeal held that trial court properly reduced workers’ compensation lien to pay for attorney’s fees, when Court of Appeal found that…
Motions for New Trial—Remittitur—Court of Appeal held that trial court did not abuse its discretion in conditionally granting defendant’s motion for new trial for excessive damages, when Court of Appeal found that …
Third Party Actions—Workers' Compensation Liens—Court of Appeal held that trial court properly credited amount of workers’ compensation lien against judgment, when Court of Appeal found that…
Digests of WCAB Decisions Denied Judicial Review
Editorial Board members Hon. David Hettick, Robert G. Heywood, Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.
Bates (Bruce) v. W.C.A.B., 77 Cal. Comp. Cases 636
Permanent Disability—Apportionment—Non-industrial Factors—WCAB, rescinding WCJ’s finding, held that opinion of psychiatric agreed medical examiner indicating that there was “reasonable likelihood” that 95 percent of applicant/warehouse supervisor’s permanent total disability was due to industrial cervical spine, low back, and psyche injuries, and that five percent resulted from non-industrial factors, was sufficient to justify apportionment of permanent disability, when WCAB disagreed with…
City of Los Altos v. W.C.A.B. (Verna, Ronald), 77 Cal. Comp. Cases 640
Compromise and Release—Scope of Settlement—Future Medical Treatment—WCAB held that applicant/police officer’s claim for reimbursement for cost of continuous positive airway pressure machine necessitated by applicant’s sleep apnea was not barred by compromise and release under which applicant settled his claims for specific and cumulative trauma industrial back injuries, when…
WCAB Jurisdiction—Enforcement of Medical Treatment Awards—WCAB held that WCJ had jurisdiction more than five years after date of applicant’s injuries to award applicant reimbursement for cost of continuous positive airway pressure machine to cure or relieve effects of his sleep apnea, when …
County of Los Angeles v. W.C.A.B. (Polanco, Jean Snape), 77 Cal. Comp. Cases 644
California Insurance Guarantee Association—Other Insurance—General and Special Employers—WCAB held that applicant/administrative assistant’s self-insured special employer, County of Los Angeles, was liable for workers’ compensation benefits payable to applicant as result of specific and cumulative trauma industrial injuries to her bilateral wrists, hands, elbows, shoulders, and psyche, and that CIGA, on behalf of general employer’s insolvent carrier, was shielded from liability pursuant to Insurance Code § 1063.1(c)(9), when WCAB found that…
Garau (Olga) v. W.C.A.B., 77 Cal. Comp. Cases 649
Workers' Compensation Judges—California State Bar Status—WCAB, denying applicant’s petition for removal, held that WCJ's who are inactive, rather than active, members of California State Bar have jurisdiction and are …
Hanson (Rebecca) v. W.C.A.B., 77 Cal. Comp. Cases 652
Permanent Disability—Application of 2005 Permanent Disability Rating Schedule—WCAB, in split panel opinion, rescinded WCJ's finding that 1997 Schedule for Rating Permanent Disabilities applied to rate permanent disability incurred by applicant as result of 9/18/2003 back and psyche injuries, when WCAB disagreed with …
Los Angeles County Parks & Recreation v. W.C.A.B. (Liddell, Rodney), 77 Cal. Comp. Cases 657
Vocational Rehabilitation—Repeal of Labor Code § 139.5—WCAB affirmed WCJs finding that applicant/custodian who incurred industrial injuries to his mouth, right hand, left leg, left knee, left foot, right ankle, right thumb, and teeth on 9/15/2002 was entitled to vocational rehabilitation maintenance allowance from 4/16/2003 “to the present and continuing,” in accordance with Rehabilitation Unit’s 5/4/2006 Determination, and that, pursuant to …
Vocational Rehabilitation—Reinstatement of Services—WCAB held that applicant/custodian who incurred industrial injuries to his mouth, right hand, left leg, left knee, left foot, right ankle, right thumb, and teeth on 9/15/2002 was not barred from receiving vocational rehabilitation benefits and services by five-year statute of limitations in Labor Code § 5410, even though applicant did not request reinstatement of services within five years of his date of injury, when WCAB found that …
Piper (Darlyn) v. W.C.A.B., 77 Cal. Comp. Cases 661
Permanent Disability—Apportionment—Successive Injuries—WCAB, in split decision, affirmed WCJ’s award apportioning permanent disability equally between applicant/customer service representative’s two dates of injury based on opinion of defense qualified medical evaluator, when …
Rhine (William) v. W.C.A.B., 77 Cal. Comp. Cases 666
Temporary Disability—104-Week Limitation—Exceptions—WCAB held that applicant was not entitled to additional temporary disability benefits beyond 104 weeks already paid by defendant because language of Labor Code § 4656(c)(2) limiting temporary disability to 104 weeks was mandatory, and, although applicant contended that estoppel applied, applicant did not establish essential detrimental reliance element of estoppel, when WCAB found that …
Rodrigues (Valentina) v. W.C.A.B., 77 Cal. Comp. Cases 669
Permanent Disability—Rating—Diminished Future Earning Capacity—WCAB held that applicant/custodian with 7/23/2007 industrial injuries to her low back, right shoulder, left shoulder, thoracic spine, and psyche failed to meet her burden of rebutting diminished future earning capacity adjustment factor in 2005 Permanent Disability Rating Schedule pursuant to analysis in Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624 (Ogilvie III), when WCAB found that …
Permanent Disability—Rating—Diminished Future Earning Capacity—Due Process—WCAB held that applicant’s inability to access sampling data used in computing diminished future earning capacity adjustment factor in 2005 Permanent Disability Rating Schedule was not violation of …
Stambuk v. W.C.A.B. (Sanchez, Gabriel), 77 Cal. Comp. Cases 675
Interpreter Services—Sanctions—WCAB ordered petitioner to pay WCAB sanctions of $2,500, after order to show cause, when WCAB found that …
Other WCAB Decisions Denied Judicial Review
Advanced Orthopedics v. W.C.A.B. (Alon, Rafael), 77 Cal. Comp. Cases 679
Petitions for Reconsideration/Removal—WCAB dismissed petition for reconsideration of WCJ’s discovery order because order was not final order subject to reconsideration under Labor Code § 5900, and, alternatively, WCAB denied request for removal to WCAB under Labor Code § 5310 because petitioners did not show substantial prejudice or irreparable harm if removal was not granted, when …
Petitions for Writ of Review/Mandate—Court of Appeal denied petitioners’ petition for writ of review/mandate, noted that California Insurance Guarantee Association agreed to accept redacted version of contract between petitioners, and stated that …
Alea Work Comp Project v. W.C.A.B. (Asmega, Robert), 77 Cal. Comp. Cases 681
Cumulative Trauma Injury AOE/COE—WCAB held that applicant loan officer sustained one continuous cumulative trauma injury AOE/COE (not two, as claimed) to neck and upper extremities in period ending 11/17/2004, based on opinions from applicant’s qualified medical evaluator and qualified medial evaluator for employer’s insurer through 2001 and contrary to opinions from petitioner’s qualified medical evaluator, when WCAB found that …
Kentucky Fried Chicken v. W.C.A.B. (Luevano, Marcelo), 77 Cal. Comp. Cases 683
Injury AOE/COE—Substantial Evidence—WCAB held that applicant/cook did not meet his burden of proof under Labor Code § 3208.5 to show that he sustained compensable cumulative trauma injury to his cardiovascular and internal system for period from 5/1/2005 to 5/1/2006, and that…
Kid Brothers Productions v. W.C.A.B. (Barsky, Ben), 77 Cal. Comp. Cases 684
Petitions for Removal/Reconsideration—Time to File—WCAB held that petition for removal should be dismissed because it was not timely filed, and that, alternatively, proper remedy was by petition for reconsideration because petitioner was …
Los Angeles Trade-Technical College v. W.C.A.B. (Chi, Shing Ling), 77 Cal. Comp. Cases 685
Cumulative Trauma Injury AOE/COE—WCAB held that applicant clerk typist sustained cumulative trauma injury AOE/COE from 2/99 through 1/22/2004 to her psyche, jaw/TMJ, and in form of fibromylagia, based on opinions from agreed medical evaluators in rheumatology and psychiatry, when WCAB found that …
Pueblo Surgery Center v. W.C.A.B. (Martinez, Maria), 77 Cal. Comp. Cases 686
Liens—Medical Treatment—WCAB disallowed lien for medical treatment because lien claimant did not meet burden of establishing that treatment it provided to applicant was reasonable and necessary to cure and relieve effects of applicant's industrial injury, when WCAB found that…
Ralphs Grocery Co. v. W.C.A.B. (Nall, Carrie), 77 Cal. Comp. Cases 688
Permanent Disability—Apportionment—New and Further Disability—WCAB held that there was good cause to reopen previous award for applicant’s two industrial injuries (1978 to 3/14/2001 and on 3/14/2001) to neck, shoulders, and upper extremities, when WCAB found that …
Injury AOE/COE—After granting petition to reopen award, WCAB held that applicant sustained injury AOE/COE to her psyche from 1978 to 3/14/2001 and on 3/14/2001, based on…
Ruiz (Gerardo) v. W.C.A.B., 77 Cal. Comp. Cases 690
Permanent Disability—Rating—Apportionment—WCAB awarded applicant university custodian 32 percent permanent partial disability for 12/16/2003 industrial injury to lumbar and thoracic spine and psyche, when …
Stewart (Gina) v. W.C.A.B., 77 Cal. Comp. Cases 691
Injury AOE/COE—WCAB held that applicant did not sustain injury AOE/COE in form of gastrointestinal reflux condition or loss of vision in period ending 9/13/2007, based on …
Permanent Disability—Rating—Apportionment—WCAB awarded applicant city police officer 95 percent permanent partial disability, after apportionment, for cumulative trauma industrial injury from 9/12/88 through 9/13/2007 to kidneys and heart and in form of hypertension, lupus, arterial fibrillation, mitral valve prolapse, and hypertensive heart disease, based on …

 

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