Cal. Comp. Cases January Advanced Postings 1/6/2010

Cal. Comp. Cases January Advanced Postings 1/6/2010

Here’s the first batch of advanced postings for the January 2010 issue of California Compensation Cases. subscribers can link to the cases below.

Continental Airlines, insured by AIG v. W.C.A.B, Debra Younger

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 305

WCAB Jurisdiction--Five-Year Statute of Limitations--WCAB held that it was not deprived of jurisdiction under Labor Code § 5803 or 5410 over applicant/flight attendant's claim for permanent disability stemming from esophageal cancer and compensable consequence respiratory/pulmonary disease during period through 8/2/99 asserted more than five years after applicant's date of injury, even without finding of insidious and progressive occupational disease, when WCAB had expressly reserved jurisdiction over permanent disability to further develop medical record and final award of permanent disability had never been issued.

First Data-Orlandi Valuta, St. Paul Travelers Insurance v. W.C.A.B., Norma Flores

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 306

Injury AOE/COE--WCAB held, based on stipulations of parties, that applicant customer service clerk sustained injury AOE/COE on 8/5/2001 to neck, back, left knee, left ankle, and psyche, and, based on opinions from AME in rheumatology, that injury AOE/COE also included fibromyalgia syndrome.

Injury AOE/COE--Due Process--WCAB held that its finding that applicant's injury AOE/COE included fibromyalgia syndrome did not violate defendant/employer's due process rights, when WCAB found that parties submitted stipulations and lists of issues beginning in 9/2004, indicating that fibromyalgia was being litigated, that parties agreed to AME in rheumatology whose charge was, in part, to evaluate applicant's fibromyalgia complaints, and that defendant had notice of applicant's claim for fibromyalgia injury and had opportunity to defend against this claim.

Permanent Disability--Apportionment--WCAB awarded applicant 100-percent PTD, without apportionment, based on opinions from AME n rheumatology, which WCAB found were substantial medical evidence.

Janie Johnson v. W.C.A.B., City of Los Angeles (Police Department), PSI, administered by Tristar Risk Management

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 307

Permanent Disability--Rating--Apportionment--WCAB awarded applicant city police officer 70-percent PPD, after 40-percent apportionment of psychiatric disability to non-industrial factors, based on factors of disability from AMEs in orthopedics, neurology, and rheumatology, rating from DEU, cross-examination of rater, and multiple disabilities table, for applicant police officer's 4/3/98 injury AOE/COE to low back, neck, gastrointestinal system, psyche, and in form of high blood pressure and fibromyalgia, which occurred when applicant lifted two 10-pound barbells in defendant's weight room during her shift; WCAB also found that applicant's neck injury resulted in factors of disability for headaches, which were already included in DEU rating.

Jose Vidal Ruiz v. W.C.A.B., Menasha Packaging Company, Wausau Insurance Company, Sentry Claims Service

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 308

Injury AOE/COE--WCAB held that applicant sustained injury AOE/COE to his back on 9/19/2002 but did not sustain injury AOE/COE to any body parts on 6/11/2003,based on opinion from AME, or cumulatively in period ending 2/20/2004, based on range of medical evidence, applicant's testimony, and WCAB's findings that applicant claimed and testified about injury to back on 9/19/2002 but did not claim or testify about any injuries to shoulders or neck on any of claimed dates of injury.

Permanent Disability--Apportionment--WCAB awarded applicant 23-percent PPD, after apportionment, for 9/19/2002 industrial back injury, based on range of medical evidence and opinion from AME that 30 percent of applicant's back disability was due to non-industrial factors.

Delfino Vega v. W.C.A.B., Home Depot, PSI, adjusted by Helmsman Insurance West/Helmsman Management Services

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 309

Injury AOE/COE--WCAB held that applicant warehouse worker did not sustain injury AOE/COE on 4/6/2006 to his head, neck, spine, lower extremities, or in cognitive form, based on opinions from two AMEs and applicant's treating physician, when WCAB found that all of these physicians gave opinions that applicant did not sustain industrial injury, that applicant was not credible in describing how injury occurred or which body part was injured, and that applicant did not meet burden of proving injury AOE/COE.

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