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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. ADJ10187704, ADJ10924724
Regular
May 17, 2018

STEVEN CASE vs. GOLDEN GATE BRIDGE HIGHWAY AND TRANSPORTATION DISTRICT

The Workers' Compensation Appeals Board granted reconsideration to increase applicant's permanent disability rating for bilateral shoulder injury from 9% to 38%. The Board found the Agreed Medical Evaluator's (AME) alternative rating, based on strength loss, was substantial medical evidence and properly considered within the AMA Guides. The WCJ erred in applying an overly restrictive interpretation of "complex or extraordinary" cases for deviating from strict AMA Guides ratings. The AME's use of strength loss data from the AMA Guides, even for an age outside the specified range, was permissible under the *Almaraz-Guzman* line of cases when justified by clinical judgment.

Workers' Compensation Appeals BoardJoint Findings and AwardPetition for ReconsiderationAgreed Medical Evaluator (AME)permanent disability ratingbilateral shouldersorthopedic AMEAMA GuidesAlmaraz-Guzmanstrength loss index
References
20
Case No. 2023-07-6858
Regular Panel Decision
May 29, 2024

Pond, Kayla v. DARDEN RESTAURANTS, INC.

Kayla Pond sustained a left-shoulder injury on October 25, 2021, while working for Darden Restaurants, Inc., leading to a labral tear and rotator cuff tear. Her treating physician, Dr. David Pearce, initially assessed a 7% impairment, later reduced to 6%, which he admitted was 'inflated' and did not strictly follow AMA Guides due to the inclusion of an incidental distal clavicle resection. Darden's records review physician, Dr. David Lochemes, countered with a 2% impairment, arguing that the AMA Guides explicitly prohibit rating incidental resections and that only work-related injuries should be considered. The Court, citing Hart v. Thyssenkrupp Elevator Corporation, found that Darden rebutted the presumption of correctness of Dr. Pearce's opinion regarding the causal relationship of the AC arthritis and resection. Ultimately, the Court adopted Dr. Lochemes's 2% impairment rating, concluding that Dr. Pearce's assessment did not adhere to the AMA Guides, and awarded Ms. Pond $8,254.72 in permanent partial disability benefits.

Left Shoulder InjuryLabral TearRotator Cuff TearDistal Clavicle ResectionAMA GuidesImpairment Rating DisputeCausation of InjuryTreating Physician Presumption RebuttalPermanent Partial Disability BenefitsMedical Expert Testimony
References
2
Case No. 01-16-00847-CV
Regular Panel Decision
Aug 22, 2019

Adan G. Adame v. Glendale Optical

The case involves 106 sandblasters appealing the dismissal of their silica exposure claims. In 2005, the Texas Legislature enacted Chapter 90 of the Civil Practice and Remedies Code, creating a Silica multidistrict litigation (MDL) pretrial docket, establishing procedures for claims to advance to trial upon submission of compliant medical reports. The statute was amended in 2013 to allow dismissal without prejudice of pre-2005 claims if claimants failed to file qualifying medical reports by a specified deadline. The sandblasters filed their medical reports in 2013, but many were prepared before the 2005 statute specifying report content. The MDL Court sustained objections to almost all medical reports, dismissing all 106 claims without prejudice to refiling. The sandblasters appealed, arguing Chapter 90 is unconstitutional due to vagueness and retroactive application. The Court of Appeals affirmed the dismissal, overruling the sandblasters' constitutional challenges. It found that the statute's reference to the Code of Federal Regulations for impairment determination was not unconstitutionally vague, nor were the requirements for detailed medical and occupational histories. The court also rejected the argument that not specifying the AMA Guides edition caused vagueness, noting the MDL Court had clarified the applicable edition. The court further dismissed the challenge regarding specific x-ray findings for lung abnormalities, pointing to a 'safety valve' provision for atypical cases. Finally, the court held that granting the MDL Court authority to evaluate medical report sufficiency does not render the statute vague, aligning with established judicial roles in assessing expert evidence. The court concluded that the 2013 amendment adding dismissal procedures was not an unconstitutional retroactive law, as claimants had no vested right to indefinite litigation without providing reliable medical evidence.

Silica ExposureMultidistrict LitigationConstitutional LawDue ProcessVagueness ChallengeRetroactive LawMedical ReportsImpairment RatingOccupational DiseasePulmonary Impairment
References
32
Case No. ADJ3849676 (AHM 0147658) ADJ1948081 (AHM 0147721)
Regular
Feb 14, 2011

ROBERT LEON vs. RF DEVELOPMENT & BUSCH CORPORATION, LINCOLN GENERAL INSURANCE

In this workers' compensation case, the defendant sought reconsideration of a $37\%$ permanent disability award, arguing the physician's impairment rating improperly deviated from the AMA Guides. The Appeals Board granted reconsideration, finding the physician's justification for not strictly applying the Guides was insufficient and not based on substantial medical evidence. Specifically, the physician's reliance on subjective complaints and analogies to amputation were not adequately supported. The Board rescinded the award and remanded the case for a new rating strictly following the AMA Guides.

Workers' Compensation Appeals BoardRF Development & Busch CorporationLincoln General InsuranceAmerican Claims ManagementRobert LeonADJ3849676ADJ1948081ReconsiderationFindings and AwardIndustrial Injuries
References
2
Case No. ADJ9890148
Regular
Feb 02, 2017

Timothy Bedford vs. CITY OF LOS ANGELES

This Workers' Compensation Appeals Board case denies reconsideration of a permanent disability rating. The Board affirmed the use of Figure 15-19 of the AMA Guides, finding it permissible to use any chapter or method within the Guides that most accurately reflects impairment. The Agreed Medical Evaluator's opinion was deemed substantial, as he explained how Figure 15-19 was used to derive a more accurate rating based on the applicant's specific spinal condition. The decision also distinguished the current case from prior panel decisions regarding the application of the AMA Guides and work limitations.

AMA Guidespermanent disability ratingrebuttable presumptionwhole person impairmentAlmaraz/Guzman IIclinical judgmentagreed medical evaluator (AME)Figure 15-19functional losssurgical-grade disc herniations
References
7
Case No. ADJ6788177
Regular
May 13, 2015

GREGORY GREENE vs. CENTRAL PARKING SYSTEMS, SEDGWICK CMS

In this workers' compensation case, the Appeals Board denied the defendant's petition for reconsideration. The defendant challenged a $75\%$ permanent disability award, arguing the primary treating physician's rating improperly combined various lower extremity impairments, violating the AMA Guides. The Board found the WCJ's reliance on the physician's opinion was supported by substantial evidence, emphasizing the need for accurate, not mechanical, application of the Guides. A dissenting opinion argued the rating was not substantial evidence as it failed to follow proper *Almaraz-Guzman* procedures for deviating from strict AMA Guides application and advocated for remand.

Workers' Compensation Appeals BoardAmended Findings and AwardPetition for Reconsiderationindustrial injurypermanent disabilitylife pensionLabor Code section 4658 (d) increasesubstantial medical evidenceLabor Code section 4660 (b)(1)AMA Guides
References
4
Case No. ADJ285115 (STK 0203659)
Regular
May 17, 2010

ARTEMIO GONZALEZ vs. RANGEL DRYWALL, INC., STATE COMPENSATION INSURANCE FUND

The applicant sustained an admitted industrial injury to his left lower extremity, specifically a fractured ankle requiring surgery. The defendant sought reconsideration of the WCJ's award of 30% permanent disability, arguing the panel QME's reports lacked specific measurements and explanations required by the AMA Guides. The Appeals Board affirmed the WCJ's decision, finding the QME's deposition testimony, which provided detailed explanations and measurements, constituted substantial evidence. The Board clarified that while AMA Guides sections must be followed, physicians can use their clinical judgment and specific tables within the Guides as long as the basis is explained.

Workers' Compensation Appeals BoardArtemio GonzalezRangel DrywallState Compensation Insurance FundPermanent DisabilityMedical TreatmentConstruction WorkerQualified Medical ExaminerAMA GuidesPermanent Impairment
References
2
Case No. ADJ1078163 (BAK 0145426), ADJ3341185 (SJO 0254688)
Significant
Feb 03, 2009

Mario Almaraz, Joyce Guzman vs. Environmental Recovery Services (a.k.a. ENVIROSERVE), State Compensation Insurance Fund, Milpitas Unified School District, Permissibly Self-Insured, Keenan & Associates, Adjusting Agent

The Appeals Board held that the AMA Guides portion of the 2005 Schedule for Rating Permanent Disabilities is rebuttable by showing that an impairment rating based on the AMA Guides would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability.

AMA Guidesrebuttable presumptionpermanent disability rating2005 Scheduleimpairment determinationmedical opinionevidentiary standardequitable awardvocational specialistsactivities of daily living
References
61
Case No. 2018 NY Slip Op 00588 [158 AD3d 866]
Regular Panel Decision
Feb 01, 2018

Matter of Jelic (Ama Research Labs. Inc.--Commissioner of Labor)

Vera Jelic, a laboratory technician, was terminated from AMA Research Laboratories Inc. due to repeated tardiness and absenteeism. She filed for unemployment insurance benefits, which were initially granted by the Department of Labor and affirmed by an Administrative Law Judge and the Unemployment Insurance Appeal Board. The employer appealed, arguing that Jelic's actions constituted disqualifying misconduct. The Appellate Division, Third Department, affirmed the Board's decision, finding that while the employer had cause for termination, Jelic's conduct did not demonstrate a willful and wanton disregard of the employer's interest to rise to the level of disqualifying misconduct. The court noted that disciplinary actions occurred after a work-related injury and that Jelic was not given an opportunity to correct her behavior prior to termination.

Unemployment InsuranceDisqualifying MisconductTardinessAbsenteeismEmployment TerminationWillful and Wanton DisregardSubstantial EvidenceAppellate DivisionLabor LawEmployer Interest
References
6
Case No. MISSING
Regular Panel Decision

Serrano v. 900 5th Avenue Corp.

Defendants Brown Harris Stevens Residential Management (BHS) and 900 5th Avenue Corp. (900 5th) moved to dismiss an employment discrimination case, citing lack of subject matter jurisdiction. BHS argued it was not the plaintiff's employer, while 900 5th contended it did not meet Title VII's 15-employee minimum for an employer. The court denied BHS's motion, determining that BHS significantly affected the employment opportunities at 900 5th through its contractual authority and actions related to hiring, firing, discipline, and labor relations, thus falling within the broad definition of an "employer" under Title VII. Conversely, the court granted 900 5th's motion, ruling that its employees could not be counted with BHS's under a "joint employer" theory to satisfy the 15-employee minimum, as such an interpretation would contradict the purpose of protecting small businesses from Title VII liability.

Employment discriminationSubject matter jurisdictionRule 12(b)(1) motion to dismissTitle VIIEmployer definitionJoint employer theoryFederal Civil ProcedureStatutory minimum employeesSupervisory authority
References
17
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