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Case Law Database

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

Case No. ADJ4258585 (OXN 0130492) ADJ220258 (OXN 0130487)
Regular
Apr 17, 2018

ENRIQUE HERRERA vs. MAPLE LEAF FOODS, U.S. FIRE INSURANCE COMPANY, ALEA NORTH AMERICAN INSURANCE COMPANY

This notice informs parties that the Workers' Compensation Appeals Board (WCAB) intends to admit its rating instructions and a disability rater's recommended permanent disability rating into evidence. The WCAB previously granted reconsideration for further study. Parties have seven days to object to the rating instructions or the recommended rating, with specific procedures for addressing objections. If no timely objection is filed, the matters will be submitted for decision thirty days after service.

WORKERS' COMPENSATION APPEALS BOARDPermanent Disability RatingDisability Evaluation UnitRating InstructionsRecommended Permanent Disability RatingJoint RatingReconsiderationObjectionRater Cross-ExaminationRebuttal Evidence
References
0
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. ADJ1679104 (LBO 0387820)
Regular
Aug 26, 2010

GUADALUPE FREGOSO vs. INTEGRAL DESIGN CONSTRUCTION, STATE COMPENSATION INSURANCE FUND

This case concerns a defendant's petition for reconsideration of a permanent disability rating for an applicant injured on August 1, 2006. The defendant argued the rating was erroneous because the administrative law judge (WCJ) instructed the disability evaluator to rate the treating physician's report without referencing the AMA Guides. The Appeals Board denied the petition, finding that the WCJ's instructions were based on the physician's opinion, which complied with the AMA Guides, and the evaluator's rating followed those instructions. The Board also corrected a clerical error regarding the attorney fee calculation.

WORKERS' COMPENSATION APPEALS BOARDReconsiderationFindings and Awardtemporary disabilitypermanent disabilityapportionmentnon-industrial causesindustrial injurynecklow back
References
1
Case No. ADJ6757080
Regular
Jul 23, 2012

GRACE AOKI vs. CITY OF TORRANCE

This case concerns a library page's permanent disability rating for a right shoulder injury. The agreed medical evaluator combined ratings for loss of motion and weakness/grip strength, exceeding AMA Guides limitations for combining such impairments. The Appeals Board found the physician's report insufficient to rebut AMA Guide standards or explain the combined rating. Consequently, the permanent disability award was reduced from 46% to 20%.

Workers' Compensation Appeals BoardGrace AokiCity of TorrancePermissibly Self-InsuredReconsiderationJoint Findings and AwardPermanent DisabilityAgreed Medical EvaluatorSeymour L. AlbanPetition for Reconsideration
References
1
Case No. ADJ3525524 (LAO 0866019)
Regular
Jan 11, 2016

CECILE CONSTANTINO vs. QUEENSCARE, ALEA NORTH AMERICA

The Board granted reconsideration, finding the WCJ erred in both applying the Labor Code section 4658(d)(2) increase to a 2004 injury and in not properly apportioning disability to a prior 1993 injury. The Board determined the agreed medical evaluators' opinions regarding apportionment were substantial evidence and reversed the WCJ's finding that the AMA Guides impairment rating was successfully rebutted. Consequently, the permanent disability rating was recalculated using the scheduled AMA Guides rating and incorporating apportionment, resulting in a lower overall permanent disability percentage and award.

WCABPetition for ReconsiderationFindings and AwardIndustrial InjuryPermanent DisabilityAgreed Medical EvaluatorAMA GuidesGuzmanApportionmentLabor Code section 4658(d)(2)
References
7
Case No. ADJ8718778
Regular
Jul 06, 2015

BETOEL GOMEZ vs. UNITED PALLET SERVICES, CIGA

This case concerns applicant Betoel Gomez's claim for permanent disability due to a right hand and bilateral wrist injury. The defendant, United Pallet Services, sought reconsideration of a $21\%$ permanent disability award, arguing the Qualified Medical Evaluator (QME) improperly used an analogical rating rather than AMA Guides' scheduled ratings. The Appeals Board granted reconsideration, agreeing the QME failed to adequately justify the analogical rating in his supplemental report. Ultimately, the Board amended the award to $10\%$ permanent disability, based on the QME's initial report which applied the AMA Guides to grip strength loss.

Workers' Compensation Appeals BoardCIGAUllico Casualty Companyliquidationpermanent disabilityWhole Person ImpairmentWPIAMA GuidesAlmaraz/GuzmanQualified Medical Evaluator
References
2
Case No. ADJ480092 (SFO 0498380) ADJ2934310 (SFO 0498381)
Regular
Apr 26, 2009

TONI MORGAN vs. REDWOOD CREDIT UNION, ZENITH INSURANCE COMPANY, UNITED STATES FIRE INSURANCE CO.

This case concerns an applicant's petition for reconsideration of a workers' compensation judge's finding that the 2005 Permanent Disability Rating Schedule (PDRS) should apply to two cumulative trauma injuries. The applicant argued for the 1997 PDRS, asserting a defendant's termination of temporary disability payments triggered a Labor Code notice requirement. Alternatively, the applicant contended the $15\%$ permanent disability rating was too low, citing *Almaraz/Guzman* regarding disparities between AMA Guides impairment ratings and actual employability. The Appeals Board granted reconsideration, agreeing the medical record needed further development under *Almaraz/Guzman*, and deferred the permanent disability issue for trial level review. A dissenting opinion argued the applicant waived the AMA Guides impairment issue by not raising it earlier.

WCABRedwood Credit UnionZenith Insurance CompanyUnited States Fire Insurance Co.cumulative traumapermanent disability rating schedule2005 PDRS1997 PDRSLabor Code section 4061Labor Code section 4660
References
11
Case No. MISSING
Regular Panel Decision

People v. Young

An attorney representing an indigent defendant in Monroe County filed an application seeking reimbursement for legal services at a rate of $200 per hour, mirroring the rate charged by the Special Prosecutor, rather than the statutory rates under County Law § 722-b. The attorney argued that the significant disparity in hourly compensation violated the defendant's right to equal protection and that his qualifications justified the requested rate. The New York State Association of Criminal Defense Lawyers supported the application as amicus curiae, while Monroe County opposed it, arguing the request was untimely and lacked extraordinary circumstances. Presiding Judge Donald J. Mark, J., acknowledged the court's authority to grant compensation in excess of statutory limits under extraordinary circumstances but ultimately denied the application. The denial was based on the court's reasoning that an analogous argument was previously rejected, that linking assigned counsel rates to prosecutor rates would render County Law § 722-b ineffective, and that extraordinary circumstances could not be demonstrated prior to the conclusion of the criminal action. The court, however, reserved the right to reconsider an increased hourly fee upon the case's termination if such circumstances are then proven.

Assigned CounselLegal Aid CompensationCounty Law Section 722-bHourly Rate DisputeSpecial Prosecutor FeesIndigent RightsJudicial DiscretionExtraordinary CircumstancesMonroe County LawEqual Protection Challenge
References
16
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
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