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

Case No. ADJ7761748
Regular
Nov 18, 2019

JOSE VARGAS vs. WEST COAST LIQUIDATORS, INC., dba BIG LOTS STORES, ARCH INSURANCE, Administered by SEDGWICK CMS

The Appeals Board granted reconsideration to address the recoverability of vocational expert costs and affirmed the applicant's 50% permanent disability rating. It held that the costs of vocational expert Robert Stoneburner's reports are recoverable, even if his opinions weren't found to be substantial evidence, as long as the expert was qualified and the costs were reasonable and necessary. The WCJ's credibility determination regarding the applicant was given significant weight, and the court found no basis to reject it. The case was remanded to determine the precise amount of recoverable expert costs.

Vocational expertPetition for ReconsiderationFindings and AwardPermanent disabilityReimbursementLabor Code section 5811Appeals BoardWCJSubstantial evidenceExpert witness
References
4
Case No. MISSING
Regular Panel Decision
Apr 07, 1988

De Coste v. Champlain Valley Physicians Hospital

Decedent, Darwin A. De Coste, experienced chest pain and elevated blood pressure, leading him to Champlain Valley Physicians Hospital where he was seen by Dr. William Amsterlaw. Amsterlaw diagnosed reflux esophagitis despite an abnormal electrocardiogram, discharging De Coste, who subsequently suffered a fatal cardiopulmonary arrest 12 hours later. The administrator of De Coste's estate filed a wrongful death action, alleging medical malpractice and that the misdiagnosis was the proximate cause of death. A jury awarded pecuniary damages and funeral expenses, which the defendants appealed. The appellate court affirmed the verdict, finding rational support for the jury's malpractice finding and rejecting the defendants' argument to reduce the award by Social Security benefits due to the effective date of CPLR 4545 (c).

Medical MalpracticeWrongful DeathProximate CauseCollateral Source RuleCPLR 4545Jury VerdictEmergency Room CareMisdiagnosisArteriosclerosisMyocardial Infarction
References
3
Case No. ADJ4280526 (OXN 0148727)
Regular
Dec 09, 2013

CLARA ARBIZU vs. WESTAC, INC., WAUSAU INSURANCE COMPANY

This case concerns an applicant's request for the defendant to prepay the cost of a vocational expert. The Appeals Board affirmed the original decision that defendants are not obligated to prepay these expenses. However, the Board clarified that vocational expert costs are considered medical-legal expenses under Labor Code section 4620 et seq., and defendants are liable for reasonable and necessary expenses incurred for proving or disproving a contested claim. The parties are ordered to proceed with a vocational expert evaluation, with the defendant ultimately responsible for the costs.

ArbizuVocational expertPrepaymentMedical-legal expenseLabor Code Section 4620Labor Code Section 4621Labor Code Section 5811Labor Code Section 5708Ogilvie analysisWhole Person Impairment
References
5
Case No. 21-mc-102
Regular Panel Decision

Socha v. 110 Church, LLC

Plaintiffs, Marek Soeha, Jerzy Muszkatel, Tadeusz Kowalewski, Wla-dyslaw Kwasnik, and Waldemar Ropel, sought to compel expert testimony from non-retained physicians associated with the Mt. Sinai World Trade Center Medical Monitoring Program and a Workers’ Compensation physician. These "Non-Retained Experts" possess unique knowledge regarding the effects of World Trade Center dust but were unwilling to provide data or serve as expert witnesses due to time constraints and concerns about compromising neutrality. District Judge Alvin K. Hellerstein denied the plaintiffs' motion to compel depositions and amended expert disclosures, finding a lack of "substantial need" as the information was not unique and comparable witnesses were available. However, acknowledging the unparalleled scope of the Mt. Sinai WTC Health Program's research, the court ordered Mt. Sinai to produce its data, with appropriate redactions, following an established protocol.

Expert Witness DepositionMotion to CompelFederal Rules of Civil Procedure 26Non-Retained ExpertsWorld Trade Center LitigationMedical Monitoring ProgramDiscovery DisputeSubpoena Expert WitnessCausation TestimonyData Disclosure Order
References
3
Case No. ADJ9510116
Regular
Apr 06, 2016

SUNRISE TERRACE MOBILEHOME OWNERS ASSOCIATION vs. ICW Group/Explorer Insurance Company, Williamsburg National Insurance, Tower Select Insurance

Explorer Insurance Company sought reconsideration of a WCJ's decision awarding vocational expert costs. The parties had previously settled underlying claims for $30,000, with the C&R leaving the decision on vocational expert costs to the WCJ. Explorer argued the WCJ erred in awarding uncertain costs, failing to list all case numbers, and not awarding costs against all defendants. The Appeals Board granted reconsideration, rescinded the WCJ's decision, and returned the matter to the trial level due to the unclear identification of liable carriers across the multiple case numbers and differing insurance coverage stipulations. The WCJ will need to conduct further proceedings to definitively identify liable parties and address a stipulation resolving contribution.

Vocational expert costsOrder Approving Compromise and ReleasePetition for ReconsiderationReport and RecommendationJoint and several liabilityThird-party administratorSubstantial evidenceStipulationCumulative injuryContribution
References
1
Case No. GRO 0033398
Regular
Jan 17, 2008

JOSEPH BERTAO vs. CRYSTAL SPRINGS WATER, STATE COMPENSATION INSURANCE FUND

This case concerns an applicant seeking to challenge his permanent disability rating by obtaining expert testimony. The applicant requested defendants advance costs for this expert evaluation, but the Workers' Compensation Appeals Board (WCAB) denied this request. The WCAB found no statutory basis to order advancement of costs for future expert evaluation and could not determine if the anticipated evidence would be reasonable and necessary.

Workers' Compensation Appeals BoardJoseph BertaoCrystal Springs WaterState Compensation Insurance FundPermanent Disability Rating ScheduleReconsiderationAdvance CostsLabor Code Section 5811Costa v. Hardy DiagnosticAgreed Medical Evaluator
References
2
Case No. FRE 0191303
Regular
Nov 27, 2007

NORMA OZUNA vs. COUNTY OF FRESNO

The Workers' Compensation Appeals Board (WCAB) rescinded a finding that the defendant was not responsible for the costs of the applicant's vocational expert. The WCAB remanded the case to the trial level for further analysis, instructing the judge to consider the factors outlined in *Costa v. Hardy Diagnostic* regarding the reasonableness and necessity of expert costs. The decision does not comment on the merits of whether the costs are ultimately reimbursable.

Vocational expert costsLabor Code section 5811Costa v. Hardy DiagnosticPermanent Disability Rating ScheduleAppeals Board en banccumulative traumaHepatitis Ccorrectional officeragreed medical evaluatorfindings of fact and award
References
2
Case No. ADJ7847287
Regular
Sep 20, 2011

MICHAEL WATERS vs. CHARTER COMMUNICATIONS, NEW HAMPSHIRE INSURANCE CO., BROADSPIRE

The WCAB granted reconsideration and rescinded an administrative law judge's order compelling the defendant to advance $2,000 to the applicant's attorney for a vocational expert's costs. While acknowledging that advances on permanent disability are common, the Board found the specific order to pay an attorney's trust account for potential future expert costs lacked statutory basis. The Board clarified that the applicant's attorney may incur such costs at their own expense and then seek reimbursement if deemed reasonable and necessary.

Petition for RemovalPetition for Reconsiderationvocational expertdiminished future earning capacitypermanent disabilityrehabilitation experttrust accountadvance costsreimbursementLabor Code sections 5811
References
3
Case No. ADJ6692520
Regular
Jul 20, 2010

CRYSTAL VOS vs. STEVEN CHANG, DDS, ZENITH INSURANCE COMPANY

This case affirms a WCJ's decision finding the applicant sustained a 12% permanent disability. The applicant sought reconsideration, arguing the WCJ erred by limiting rebuttal evidence to "wage loss" rather than "loss of long-term earning capacity" and denying costs for a vocational expert. The Appeals Board, relying on precedent from *Ogilvie v. City and County of San Francisco*, held that the vocational expert's opinion was not substantial evidence to rebut the permanent disability rating. Therefore, the WCJ's denial of the vocational expert's costs was also affirmed.

Workers' Compensation Appeals BoardSupplemental Findings and Awardindustrial injurypermanent disabilityvocational expertwage lossloss of long-term earning capacitydiminished future earning capacity (DFEC)2005 Permanent Disability Rating ScheduleOgilvie v. City and County of San Francisco
References
4
Case No. ADJ3533537 (VNO 0556925)
Regular
Apr 14, 2016

Richard Varela vs. Morley Group, National Union Fire Insurance Company of Pittsburgh, Pennsylvania

The Workers' Compensation Appeals Board affirmed an award of $2,737.50 for an expert witness's trial testimony, clarifying that such expenses are permissible costs under Labor Code section 5811. The Board held that the expert's testimony regarding the necessity of home health care services was relevant to the lien claimants' burden of proof, even though the primary injury claim was ultimately unsuccessful. This decision distinguishes between medical-legal expenses and trial witness costs, allowing for the latter when reasonably incurred for essential elements of a lien claim. The Board found the expert's testimony necessary for the lien claimants to establish all elements of their case.

Workers' Compensation Appeals BoardSupplemental Findings of Fact and OrderLabor Code section 5811lien claimantshome health care servicesexpert testimonytrial testimonyreasonableness and necessityinjury AOE/COEmedical-legal expenses
References
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