Recent Noteworthy Panel Decisions Issued by California WCAB (Posted 8/14/2008)

Recent Noteworthy Panel Decisions Issued by California WCAB (Posted 8/14/2008)

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

Joseph Jimenez v. Kings County (Probation Department), PSI. Public Employees—Salary in Lieu of Benefits—Rate—WCAB rescinded WCJ's award of Labor Code § 4850 benefits to applicant/probation officer with 6/5/2007 right shoulder, back and neck injuries at rate of applicant's pay on date of injury rather than at lower rate of pay at time of disability, and held that, pursuant to express language in Labor Code § 4850(a), Labor Code § 4850 benefits should be paid at earning rate at time of disability, since benefit is to be paid "in lieu of temporary disability payments" and purpose of Labor Code § 4850 is to replace salary employee loses due to disability.

Graciela Ramos v. Enterprise Rent A Car, PSI. Permanent Disability—Application of 1997 Schedule for Rating Permanent Disabilities—WCAB held that, pursuant to Labor Code § 4660(d), 1997 Schedule for Rating Permanent Disabilities (1997 Schedule) applied to rate permanent disability stemming from applicant's 6/30/2004 and 9/12/2005 spine injuries, when defendant was required to provide Labor Code § 4061 notice together with last payment of temporary disability on 11/30/2004, the date applicant returned to work for defendant; WCAB found that defendant's mistaken overpayment of temporary disability from 11/30/2004 through 1/13/2005, based on its lack of awareness that applicant had returned to work, did not support a determination that duty to provide Labor Code § 4061 notice arose after 1/1/2005 in order to mandate application of 2005 Permanent Disability Rating Schedule.

Graciela Ramos v. Enterprise Rent A Car, PSI. Insurance Coverage—Obligation to Disclose Identity of Insurance Carrier—WCAB held that, under Coldiron v. Compuware Corporation (2002) 67 Cal. Comp. Cases 289 (Appeals Board en banc opinion), defendant was required to disclose to WCAB and to other parties identity of its insurance carrier, and defendant's failure to accurately identify carrier or its self-insured status could result in sanctions under Labor Code § 5813.

Cheryl Asher v. Pactiv Corporation. Permanent Disability—Apportionment—Substantial Evidence—Age Discrimination—WCAB, denying defendant's petition for reconsideration that sought apportionment of applicant's award of 33-percent permanent partial disability for 11/21/2002 admitted industrial injury to lower back, held that report of agreed medical examiner did not constitute substantial evidence for apportionment under standards enunciated in Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), when WCAB found that (1) agreed medical examiner's statements in reports regarding apportionment as result of degenerative disc disease were conclusionary in that they did not discuss how or why that disease caused permanent disability and they did not provide justification for quantification of that disease's contribution to permanent disability, and (2) apportionment on grounds of pre-existing degenerative disc disease relates directly to aging itself, rather than to some factor that might be age-variable in its impact, and is, therefore, discrimination prohibited by Government Code § 11135(a).

Cheryl Asher v. Pactiv Corporation. Temporary Disability—Credit for Overpayment—WCAB held that defendant was properly denied credit against permanent disability for temporary disability overpayment between 2/6/2006, date of agreed medical evaluation that resulted in permanent and stationary report, and 3/10/2006, date on which defendant ended temporary total disability payments after receipt of report, when WCAB found that larger credit, including time period of presently claimed credit, was allowed against awarded retrospective temporary total disability indemnity, that public policy purposes of compensating temporary total and permanent partial disability are different, making it preferable to credit overpayments against liability for benefits of same type, that alleged overpayments were not voluntary payments made in absence of agreement but were made pursuant to stipulation and order of 2/22/2005, and that current claim for credit was being raised for first time on reconsideration.

Cheryl Asher v. Pactiv Corporation. Temporary Disability—Attorney's Fees—WCAB held that applicant's attorney was properly awarded fee for retrospective temporary disability payments for period from 8/7/2003 to 12/12/2003, even though applicant received no money after those retrospective payments were used to reimburse Employment Development Department and to pay applicant's attorney's fee for obtaining those payments and were applied to credit for temporary total disability indemnity paid on or after 12/13/2003, when WCAB found that value of legal services is not measured by awarded retrospective payments, but is instead measured by, in words of Labor Code § 4906(d), "the responsibility assumed by the attorney, the care exercised in representing the applicant, the time involved, and the results obtained," that lien claim for attorney's fees was appropriately given priority over credit, and that applicant did in fact receive benefit from reimbursement paid to Employment Development Department since reimbursement "replenishes" applicant's claim balance, creating greater potential entitlement to benefits.

Jose C. Cruz v. Santa Barbara County Probation Department. Permanent Disability—Apportionment—WCAB relied upon Vargas v. Atascadero State Hospital (2006) 71 Cal. Comp. Cases 500 (Appeals Board en banc opinion) to hold that apportionment statutes as enacted by SB 899 applied only to new and further disability as alleged in 5/6/2003 petition to reopen for new and further disability filed by applicant with industrial low back injury during period 8/11/86 through 6/29/98 causing 59 percent permanent disability, and that agreed medical evaluator's opinion that 75 percent of applicant's new and further permanent disability was caused by pre-existing, non-industrial factors did not constitute substantial evidence to support a finding of apportionment of under Labor Code § 4663, because agreed medical evaluator's report referred only to conditions existing before applicant's original injury; WCAB held that decision in Brodie v. W.C.A.B. (2007) 40 Cal. 4th 1313, 57 Cal. Rptr. 3d 644, 156 P.3d 1110, 72 Cal. Comp. Cases 565 does not apply to petitions to reopen for new and further disability involving original injury.

Mark Espell v. W.A. Thomas Construction Company. Statute of Limitations—Estoppel—Employer's Failure to Properly Notify Applicant of Right to Further Benefits—WCAB held that defendant who initially paid medical benefits to applicant with 6/4/99 industrial right knee injury was estopped from raising statute of limitations as a defense to applicant's 1/19/2007 application for adjudication claiming further benefits, when notice sent by defendant to applicant advising applicant that no further benefits would be paid did not comply with requirements in 8 Cal. Code Reg.  § 9812 applicable to injuries occurring on or after 1/1/94, notice did not refer to medical report upon which defendant relied in deciding to discontinue benefits, and applicant credibly testified that he would have hired an attorney and pursued claim had he been properly advised that defendant did not intend to pay further benefits.

William Medina v. Utility Tree Services, Inc. Temporary Disability—Limitations on Temporary Disability Payments—Notice—WCAB, denying applicant's petition for reconsideration, held that defendant was not required to notify applicant in advance of possible application of limitation imposed by Labor Code § 4656, which applied as matter of law, so that defendant did not owe applicant additional temporary disability, when WCAB found that applicant sustained industrial injury to his right shoulder on 7/14/2004, that defendant paid applicant temporary disability from 8/19/2004 to 9/7/2004, when it sent applicant notice that it stopped paying temporary disability as of 9/2/2004 because applicant returned to work, that on 3/15/2007 applicant received stipulated award of temporary disability for period from 8/6/2004 through 12/24/2004, that on 5/14/2007 applicant filed petition to reopen stipulated award on grounds of new and further disability, that on 8/30/2007 defendant sent applicant notice that he was not entitled to additional temporary disability in light of limitation set forth in Labor Code § 4656(c)(1), noting that first temporary disability payment was made on 8/19/2004 and that entitlement to temporary disability payments ended on 8/18/2006, that notice required by 8 Cal. Comp. Reg. § 9812 was not in any way connected to limitation set forth in Labor Code § 4656(c)(1), and that applicant's attempt to redefine "date of commencement" to not occur until defendant provided notice required pursuant to 8 Cal. Comp. Reg. § 9812 was without legal authority.

James Novak v. State of California , Department of Corrections and Rehabilitation. Permanent Disability—Apportionment—Anti-Attribution Clause—WCAB held that Labor Code § 4663(e) (effective 1/1/2007), exempting specified public safety employees with heart trouble from apportionment requirements,  is retroactive to all existing cases so as to exempt applicant/correctional lieutenant  with 1/30/2006 hypertensive cardiovascular disease and hypertension presumed compensable under Labor Code § 3212.12 from apportionment requirements, when WCAB found that retroactive application was supported by legislative declaration in Section 2 of AB 1368 that the Act was declaratory of existing law, and by the fact that this declaration was not contradicted by prior judicial interpretations or contrary to existing law.

Tim Stokes v. State of California/California Highway Patrol. Liens—Medical Treatment—Outpatient Surgery Centers—Licensure and Accreditation Requirements—WCAB relied on Stokes v. Patton State Hospital (2007) 72 Cal. Comp. Cases 996 (Appeals Board Significant Panel Decision) to hold that lien claimant/outpatient surgery center was properly licensed to provide services as an ''outpatient setting'' on 10/10/2001, 10/25/2001, and 11/14/2001, to applicant with 5/4/2001 and 5/15/2002 back, right upper extremity, left lower extremity and coccyx injuries, when evidence indicated that lien claimant possessed a surgical clinic license issued by State of California Department of Health Services (DHS), thereby satisfying licensure requirements for an ''outpatient setting'' pursuant to Health and Safety Code § 1248.1(d), and that lien claimant was not required to have a fictitious name permit from Medical Board of California because it only claimed a fee as  an "outpatient setting" as defined in Health and Safety Code § 1248.1(d). 

Tim Stokes v. State of California/California Highway Patrol. Liens—Medical Treatment—Outpatient Surgery Centers—Burden of Proving Reasonableness—WCAB held that lien claimant/outpatient surgery center did not meet burden of proving reasonableness of its  lien as required under Kunz v. Patterson Floor Coverings (2002) 67 Cal. Comp. Cases 1588 (Appeals Board en banc opinion) and was, therefore, not entitled to full lien for outpatient surgery charges in connection with three epidural corticosteroid injections under flouroscopic guidance provided to applicant with 5/4/2001 and 5/15/2002 back, right upper extremity, left lower extremity and coccyx injuries on 10/10/2001, 10/25/2001, and 11/14/2001, when lien claimant billed $11,940 for services rendered, and WCAB found that (1) Kunz did not hold that an outpatient surgery center's billing constitutes prima facie evidence of reasonableness of its charges, (2) WCAB is not required to accept billings which are unreasonable on their face as evidence of a reasonable fee, even absent rebuttal evidence, (3) the more than tenfold disparity between amount calculated by defendant (Medicare plus 175 percent) and amount charged by lien claimant supported conclusion that fee claimed by lien claimant was not reasonable, and (4) further development of record was necessary to establish reasonable fee for services provided by lien claimant. 

Jamie Lee Foster v. City of Los Angeles Fire Department. Death Benefits—Death Without Dependents—WCAB held that defendant was obligated to pay Death Without Dependents Unit (DWD) of the Department of Industrial Relations the sum of $125,000 under Labor Code § 4706.5(a) on behalf of decedent/firefighter who died without dependents on 8/14/2004 as a result of industrial injury, and that defendant was not entitled to a credit of $104,208 previously paid pursuant to Labor Code § 4702(a)(6)(B) to mother of decedent, even though Labor Code § 4702(a)(6)(B) was subsequently declared unconstitutional, when WCAB found that at the time death benefit applications were filed in this case (8/15/2005) defendant was required to pay death benefits both to DWD and to decedent's estate under Labor Code §§ 4706.5(a) and 4702(a)(6)(B), respectively, that there was no actual conflict between Labor Code § 4706.5(a) and Labor Code § 4702(a)(6)(B), that defendant did not seek clarification regarding its payment obligations and chose to pay decedent's mother but not DWD, and that there was no statutory authority for allowing a credit  against amount due to DWD.

Evangeline Gambito v. Farmers Insurance Group. Medical-Legal Procedure—Qualified Medical Evaluators—Subsequent Evaluations—WCAB held that QME report obtained pursuant to Labor Code § 4064(d) by represented applicant at her own expense was inadmissible on issue of applicant's permanent and stationary status following injuries to her cervical spine and bilateral upper extremities during period 1/29/90 through 11/18/2002, when defendant had previously obtained a panel QME under Labor Code § 4062.1 while applicant was unrepresented, and WCAB found that, because amendments to Labor Code §§ 4062 and 4062.1 were enacted after Labor Code § 4064 and the statutes cannot be harmonized, Labor Code §§ 4062 and 4062.1 prevail over Labor Code § 4064 and prohibit subsequent QME evaluations after a panel QME has been obtained.


Robin E. Kobayashi
  • 10-30-2008

The Cal. Dept. of Corrections & Rehabilitation has filed a writ with the Cal. Supreme Court re the 3DCA writ denial in James Novak v. State of California, Department of Corrections and Rehabilitation.

There are 16 Labor Code statutes providing for PRESUMED industrial causation.  8 of the 16 statutes contain non-attribution clauses. After SB899 and prior to AB1368, the WCAB held there could not be any 4663 apportionment in cases subject to the 8 apportionment statutes with a non-attribution clauses because the non-attribution cluase conflicted with the 4663 causation basis for apportionment.

The Legisature passed AB1368, which become effective 1-1-07.  AB1368 eliminates 4663 apportionment for all 16 Labor Code presumption statutes.  The Legislature declared it was a "clarification of existing law".  AB1368 is a "clarification of existing law" as to the 8 presumption statutes with a non-attribution clause.  The Cal. Dept. of Corrections argues AB1368 is a "change" in the law to the 8 presumption statutes which do NOT contain a non-attribution clause.  

The applicant, James Novak, claims industrial causation via Labor Code 3212.2, which does NOT contain a non-attribution clause.