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

Case No. MISSING
Regular Panel Decision

EEOC v. Morgan Stanley & Co.

This opinion and order addresses motions to exclude expert testimony in a class action sex discrimination lawsuit. The court reviewed challenges to various experts, including those in statistics, sociology, and damages, under Federal Rule of Evidence 702 and Daubert standards. While motions to exclude statistical experts Dr. Farrell Bloch, Dr. William Wecker, Dr. Louis L. Wilde, and Sheldon Wishnick, and social science expert Dr. Barbara Gutek were largely denied, the court granted motions to exclude Roger Blanc (securities expert) and Dr. Ira T. Kay (compensation expert). Additionally, the court partially granted and denied motions for social science experts Dr. William Bielby, Dr. June O’Neill, and Dr. Christopher Winship, limiting specific aspects of their testimony. The court emphasized that many disputes regarding expert methodologies and opinions should be left for the jury to weigh during trial.

Expert TestimonyDaubert StandardFederal Rule of Evidence 702Sex DiscriminationClass Action LawsuitEmployment LawStatistical AnalysisSocial Science ResearchWorkplace BiasAdmissibility of Evidence
References
17
Case No. ADJ8700541
Regular
Oct 17, 2019

ZAHRA STEPHENS vs. COX ENTERPRISES, INC.

The Appeals Board granted reconsideration to review the WCJ's finding of permanent and total disability based on the opinions of a psychologist, Dr. Windman, and a vocational expert, Mr. Wilkinson. The Board found that Dr. Windman's opinion lacked substantial evidence due to inconsistencies, inadequate record review, and conflicts with other medical opinions. Consequently, Mr. Wilkinson's vocational opinion, which relied heavily on Dr. Windman's findings, was also deemed not substantial evidence. The case is remanded to the trial level for further proceedings and a new determination of permanent disability.

Workers' Compensation Appeals BoardReconsiderationPermanent Total DisabilityMedical OpinionVocational ExpertSubstantial EvidencePQMENeurologistPsychologistOrthopedist
References
10
Case No. ADJ1577836
Regular
May 04, 2009

JESUS GAVINO-REMIGIO vs. STRATUS SERVICES GROUP, STATE COMPENSATION INSURANCE FUND

This case concerns an applicant injured when stepping on a metal hook, sustaining an admitted industrial injury to his right foot. The applicant sought reconsideration after the Workers' Compensation Judge (WCJ) denied findings that the injury also affected his internal systems (diabetes), eyes, and psyche, along with associated disability. The Board denied reconsideration, finding the defendant's medical expert's opinion on non-industrial diabetes causation to be substantial evidence, while deeming the applicant's medical experts' opinions insufficient. A dissenting commissioner argued the applicant's medical evidence sufficiently supported industrial causation for diabetes aggravation, warranting reconsideration.

Workers' Compensation Appeals Boardindustrial injuryright footinternal systemseyespsychediabetes mellituspermanent disabilitytemporary disabilityGerald Markovitz M.D.
References
5
Case No. ADJ2262922 (SRO 0041418)
Regular
Jul 07, 2011

DEBBIE LEVINE vs. STARBUCKS, INC., GALLAGHER BASSETT SERVICES, INC.

The applicant sought reconsideration of a permanent disability rating of 42%, arguing the vocational expert's assessment of diminished future earning capacity (DFEC) was rebutted and that Labor Code section 4662 should apply for total disability. The Appeals Board denied the petition, finding that the applicant failed to present substantial evidence to rebut the DFEC, as she never sought employment and her vocational expert's opinion was largely attributed to economic factors. Furthermore, the Board found no basis for applying Labor Code section 4662, as the applicant's alleged permanent total disability was not supported by persuasive medical or vocational evidence. The applicant's unsupported claim of zero earning capacity was contradicted by medical opinions.

Diminished Future Earning Capacity2005 PDRSOgilvie IOgilvie IIrebuttalLabor Code section 4662permanent total disabilityvocational expertsubstantial evidenceAME
References
5
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. ADJ2186466
Regular
Jun 26, 2017

AMADO URIAS vs. VALLEY COUNTY WATER DISTRICT

This case involves Amado Urias's petition for reconsideration of a Supplemental Findings and Award that determined his permanent disability at 54% after apportionment. Urias argued that his vocational expert's opinion on diminished earning capacity should have been prioritized over the medical opinions regarding his physical and psychiatric limitations. The Workers' Compensation Appeals Board denied the petition, affirming the administrative law judge's decision. The Board found that the issue of psychiatric apportionment was previously adjudicated and that the vocational expert's opinion was not substantial evidence due to its reliance on subjective complaints over objective medical findings.

Workers' Compensation Appeals BoardSupplemental Findings and AwardPermanent DisabilityApportionmentVocational ExpertDr. Albert SimpkinsDr. StewartDr. WixenDr. AhmedCumulative Injury
References
1
Case No. ADJ7399938 ADJ7068967
Regular
Jun 23, 2015

OLENA GARCIA vs. RESIDENCE INN, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA

The Appeals Board granted reconsideration, rescinded the prior award, and returned the case for further development of the record. The initial award found permanent total disability based on a vocational expert's opinion, but the Board found this opinion lacked substantial medical evidence. Specifically, the medical expert's supplemental report was not based on a current evaluation, and the vocational expert's conclusions, relying on that report, were therefore also flawed. The matter is remanded to allow for a current medical evaluation and reassessment of vocational rehabilitation and diminished earning capacity.

Workers' Compensation Appeals BoardPermanent Total DisabilityJoint Findings and AwardVocational ExpertSubstantial EvidenceScheduled RatingFunctional Capacity EvaluationAgreed Medical ExaminerApportionmentModified Work
References
0
Case No. ADJ7682048 MF ADJ7682067
Regular
Oct 03, 2014

EDGAR DIAZ vs. STATE OF CALIFORNIA, CORRECTIONS & REHABILITATION PAROLE

This case concerns an applicant who claimed industrial injuries as a parole officer. The Workers' Compensation Appeals Board rescinded a prior award of total permanent disability and remanded the case for further proceedings. The Board found that the vocational expert's opinion supporting total disability lacked substantial evidence due to an incomplete employment history and contradictions with other evidence. Furthermore, the Board determined that existing medical opinions from Agreed Medical Examiners provided a basis for apportionment of permanent disability to non-industrial factors, which the trial judge had improperly disregarded.

ApportionmentPermanent DisabilitySubstantial EvidenceVocational ExpertMedical EvidenceContinuous TraumaSpecific InjuryBody PartsPreexisting FactorsNonindustrial Factors
References
8
Case No. ADJ4219757 (OAK 0331125)
Regular
Dec 08, 2008

RENITA GUNDERSON vs. WEST CONTRA COSTA HEALTH CARE, ZURICH NORTH AMERICA

This case involved a dispute over the applicant's permanent disability rating, which the WCJ set at 60% based on a vocational expert's diminished future earning capacity opinion, deviating from the standard 2005 Schedule. The defendant appealed, arguing the expert's opinion lacked substantial evidence and that permanent disability cannot solely be based on diminished earning capacity. Ultimately, the Appeals Board rescinded the original award and remanded the case to consider a proposed compromise and release agreement due to potential future medical needs and Medicare/Social Security liability concerns.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardPermanent DisabilityLabor Code section 4660(c)2005 ScheduleDiminished Future Earning Capacity (DFEC)Vocational Rehabilitation ExpertSubstantial EvidenceFunctional Capacity Evaluation
References
1
Case No. ADJ8811286
Regular
Feb 03, 2017

Roy Lehman vs. Walgreens, Zurich American Insurance Company

In this workers' compensation case, the Appeals Board affirmed the finding that Roy Lehman is permanently and totally disabled due to an industrial injury to his low back and psyche. Defendant Walgreens appealed, arguing the finding of permanent total disability was improper due to a lack of apportionment and reliance on incorrect rating schedules. The Board found substantial medical and vocational evidence supported the total disability finding, including expert opinions that Lehman was unemployable and not amenable to rehabilitation even after considering apportionment. The Board also found the vocational expert's reports met the substantial evidence standard despite defense challenges.

Workers' Compensation Appeals BoardWalgreensZurich American Insurance CompanySedgwick Claims Management ServicesRoy LehmanOpinion and Decision After ReconsiderationFindings Award and Orderpermanent total disabilityapportionmentLabor Code Section 4663
References
2
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