Cal. Comp. Cases January Advanced Postings 1/15/2010

Cal. Comp. Cases January Advanced Postings 1/15/2010

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

Frances Carlson, Petitioner v. W.C.A.B., Blue Cross of California, California Insurance Guarantee Association, administered by Cambridge and Xchanging, on behalf of Fremont Insurance Company, in liquidation

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 310

Vocational Rehabilitation--Vocational Rehabilitation Maintenance Allowance--Repeal of Labor Code § 139.5--WCAB, reversing WCJ's findings that WCAB had jurisdiction to decide defendant's appeal of Rehabilitation Unit's 12/22/2008 Determination and that applicant with cumulative injuries during period ending on 10/16/96 was entitled to Vocational Rehabilitation Maintenance Allowance (VRMA) at delay rate because defendant did not provide timely Notice of Potential Eligibility (NOPE), held that WCAB had no jurisdiction over applicant's vocational rehabilitation claim because Rehabilitation Unit's 12/22/2008 Determination was still subject to appeal and had not become final for purpose of creating vested right on behalf of applicant to vocational rehabilitation benefits prior to 1/1/2009 repeal of Labor Code § 139.5, as required under Weiner v. Ralphs Company (2009) 74 Cal. Comp. Cases 736 (Appeals Board en banc opinion) and Weiner v. Ralphs Company (2009) 74 Cal. Comp. Cases 958 (Appeals Board en banc opinion), as required for WCAB to retain jurisdiction; WCAB found that defendant's alleged failure to send timely NOPE letter did not give applicant vested right to vocational rehabilitation benefits before 1/1/2009 and did not give WCAB jurisdiction over such benefits after that date.

Comprehensive Outpatient Surgery Center v. W.C.A.B., Social Vocational Services, Zurich North American Insurance Company, Deborah Osborne

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 311

Liens--Medical Treatment--Reasonableness and Necessity of Treatment--WCAB held that lien claimant/outpatient surgery center was not entitled to recover its lien for pain management treatment provided to applicant/service professional in connection with 3/11/2004 injuries to her neck, low back, and right hip, based on agreed medical evaluator's opinion that treatment was unreasonable and unnecessary, and that defendant's alleged failure to conduct utilization review pursuant to Labor Code § 4610 and Supreme Court's decision in State Compensation Insurance Fund v. W.C.A.B. (Sandhagen)/Sandhagen v. W.C.A.B. (2008) 44 Cal. 4th 230, 186 P.3d 535, 79 Cal. Rptr.3d 171, 73 Cal. Comp. Cases 981, prior to referring applicant to agreed medical evaluator did not preclude WCJ from relying on agreed medical evaluator's opinion regarding reasonableness and necessity of treatment, when WCAB found that Sandhagen did not apply because applicant was referred to agreed medical evaluator before Supreme Court's decision was issued in that case and that, even if Sandhagen did apply, applicant was entitled to seek agreed medical evaluator's opinion to resolve medical treatment dispute under Labor Code § 4062.

Edward J. Walsh v. W.C.A.B., Southern California Edison Company, PSI

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 312

Discrimination--Labor Code § 132a--Business Realties Defense--WCAB held that employer did not violate Labor Code § 132a, when WCAB found that applicant lineman/splicer sustained industrial injury to multiple body parts from fall on 8/30/93, that employer accepted claim, that applicant claimed discrimination from four actions by employer (2/2002 demotion to groundsman, 2/2002 failure to reinstate applicant to lineman/splicer position, 8/2006 denial of lineman pay scale request, and 11/2006 denial of lineman RGT position), that six witnesses testified that employer did not return applicant to pre-injury occupation based on limitations and findings of reporting physicians that caused employer to have concerns about safety of applicant, his co-workers, and members of public, that, based on testimony of these witnesses, applicant did not meet burden of proof under Department of Rehabilitation/State of California v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P.3d 1076, 68 Cal. Comp. Cases 831, because he did not show that employer's actions were discriminatory, and that, alternatively, even if applicant met burden of proof under Lauher, employer established business realities defense by establishing that employer's actions were taken to prevent further injury to applicant, co-workers, and members of public.

Due Process--WCAB held that it did not deny applicant's due process rights when it barred applicant from relitigating issues of claimed Labor Code § 132a discrimination by employer in 1998 and 2000, when WCAB found that these issues were previously heard and decided before WCAB.

Roberto Barrero v. W.C.A.B., Knudsen's Dairy Corporation, Fireman's Fund Insurance Company, Associated Indemnity

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 313

Medical Treatment--WCAB held that applicant's medical treatment for 3/31/75 industrial injury to back, psyche, and urologic condition included vestibular rehabilitation recommended by applicant's treating physician, when WCAB found that applicant received further medical treatment award in earlier F&A, that treating physician recommended vestibular rehabilitation due to suspected benign paroxysmal vertigo, that defendant disputed treatment and requested utilization review, and that utilization review report recommending denial was not timely.

Summary of Evidence--Service--WCAB found that it timely served minutes of hearing and summary of evidence on all parties, including applicant, after both trial and status conference.

Raising Issues--Waiver--WCAB held that applicant did not raise issues of Lab. C. §§ 5813 and 5814 in pre-trial conference statement or in minutes of hearing and summary of evidence, and, therefore, WCAB deemed these issues to be waived.

City of Los Angeles (Building and Safety), PSI v. W.C.A.B., Eboni Nichols

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 314

Injury AOE/COE--WCAB held that applicant clerk typist/administrative assistant sustained injury AOE/COE on 1/29/2008, based on credible testimony from applicant and her supervisor, when WCAB found that applicant was injured during her lunch period while walking on public street between employer's premises and employer's parking lot when motor vehicle struck her, that applicant was walking to her car to retrieve money to pay off debt owed to co-worker, that on date of injury applicant's supervisor rescheduled applicant's lunch period to accommodate staffing needs, that supervisor testified that she allowed employees to leave premises to feed meters and obtain refreshment (i.e., for personal comfort), and that supervisor considered applicant to be salaried employee, which meant that her pay included her lunch period.

Going and Coming Rule--Exceptions--WCAB held that applicant's industrial injury was not barred by going and coming rule, when WCAB found that personal comfort exception applied.

Willy Mathurin v. W.C.A.B., Statewide Maintenance Services, Inc., State Compensation Insurance Fund

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 315

Petitions for Reconsideration--Dismissal--Skeletal Petitions--WCAB dismissed pro per applicant's petition for reconsideration, finding that it was skeletal petition subject to dismissal for failure to meet requirements of 8 Cal. Code Reg. § 10846, when WCAB issued order approving C&R resolving applicant's claim for workers' compensation benefits for 2/15/2002 injury, applicant filed petition for reconsideration of order approving C&R, and WCAB found that applicant did not give any basis to set aside C&R and did not make meaningful reference to factual record or principles of law.

Optimal Health Institute, Henry Kan, D.C. v. W.C.A.B., Earl Bercovitch, D.D.S., XL Specialty Insurance, c/o Broadspire, a Crawford Company, Gilda Rojas

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 316

Petitions for Writ of Review--Time to File--Court of Appeal dismissed petition for writ of review not filed within time requirements of Lab. C. § 5950, citing Camper v. W.C.A.B. (1992) 3 Cal. 4th 679, 12 Cal. Rptr. 2d 101, 836 P.2d 888, 57 Cal. Comp. Cases 644.

Francisco Unified School District, legally uninsured and administered by Tristar Risk Management, Insurance Company of Hanover, administered by Midlands Claims Administrators v. W.C.A.B., Josephine Richau

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 317

Permanent Disability--Rating--Apportionment--WCAB awarded applicant 100-percent PTD, without apportionment, for 7/16/2002 injury to spine and compensable consequence injury in form of methicillin resistant staphylococcus aureus (MRSA), when WCAB found that applicant needed three surgeries for spine condition, that after last two surgeries she developed MRSA, that AME gave opinions that MRSA was devastating complication of industrial injury, caused applicant's PTD, and was incurable, that applicant credibly testified that she was unable to perform daily activities and needed care giver, and that defendant did not prove apportionment of PD under either Lab. C. § 4663 or § 4664.

WCAB's Duty to Develop Record--WCAB held that there was no basis to further develop record because defendant had full and fair opportunity to be heard and to develop record, including choosing AME, and that AME's opinions were substantial evidence.

Gilbert Valadez v. W.C.A.B., Coffman Specialties, California Insurance Guarantee Association, administered by Broadspire, on behalf of California Compensation Insurance, in liquidation

75 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 318

Good Cause to Reopen--New and Further Disability--WCAB held that there was no good cause to reopen applicant's 99-percent PD award and that applicant did not suffer new and further disability related to his 9/17/97 industrial electrocution injury to nervous system and multiple body parts, when WCAB found that applicant's level of PD had not worsened since 99-percent award, based on WCAB's determination that applicant was not credible in describing worsened condition and also based on opinions of defense neurologist and defense orthopedic surgeon.

Permanent Disability--WCAB, denying applicant's request for increase to 100-percent PTD award, held that applicant was able to compete in open labor market, based on opinions from defense neurologist and defense orthopedic surgeon that WCAB found were sufficient to rebut opinion of applicant's VR expert that applicant was unable to compete in open labor market, and also based on WCJ's courtroom observation of applicant.

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