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

Case No. ADJ1955186
Regular
Apr 14, 2023

ROBERT JELENIC vs. LOS ANGELES DEPARTMENT OF WATER AND POWER

This case involves a dispute over permanent and total disability following a 1997 industrial injury. The Appeals Board affirmed the finding of permanent and total disability, including the applicant's upper and lower back in the industrial injury. However, the Board rescinded the original finding that apportionment to non-industrial factors was inapplicable, stating apportionment under Labor Code section 4663 should be considered. The majority found Dr. Richman's apportionment opinions did not provide substantial evidence for apportionment, while the dissenting opinion argued for further development of the record regarding apportionment to a 1992 non-industrial injury.

Permanent Total DisabilityApportionmentLabor Code Section 4662(a)(4)Agreed Medical Examiner (AME)Vocational FeasibilityCognitive ImpairmentSub Rosa Videos1997 PDRSPermanent Impairment RatingPre-existing Condition
References
10
Case No. 03-cv-4134
Regular Panel Decision

Infantolino v. Joint Industry Board of the Electrical Industry

Anthony Infantolino sued the Joint Industry Board of the Electrical Industry (JIB) and Thomas Bush, alleging unlawful retaliation under the Americans with Disabilities Act (ADA) and New York State/City laws. JIB moved for summary judgment, arguing procedural defects and substantive failures, including that it was not Infantolino's employer. The court found JIB to be a 'joint labor-management committee' and thus a 'covered entity' under the ADA, refuting the employer argument. The court denied summary judgment regarding the retaliation claims, finding genuine issues of fact as to whether JIB's stated reasons for its actions were pretexts for impermissible retaliation. However, the motion for summary judgment was granted in part, denying punitive and compensatory damages for the ADA retaliation claim and punitive damages for the New York State Human Rights Law claim, but allowing punitive damages for the New York City Human Rights Law claim.

ADA RetaliationDisability DiscriminationSummary JudgmentBurden-Shifting FrameworkCausal ConnectionPretextPunitive DamagesCompensatory DamagesNew York City Human Rights LawNew York State Human Rights Law
References
36
Case No. ADJ3026623
Regular
Jun 28, 2010

ROBERTO PICENO vs. KLUNE INDUSTRIES, INC.; CIGA, administered by CAMBRIDGE for FREMONT, in liquidation

This case involves a defendant's petition for reconsideration of an award of permanent disability for an applicant's industrial injuries sustained on January 22, 1997. The defendant argued for apportionment of the permanent disability to non-industrial factors and to a cumulative trauma injury. The Workers' Compensation Appeals Board (WCAB) dismissed the defendant's petition because it was unverified, a mandatory requirement. The WCAB found the defendant failed to cure this defect within a reasonable time after it was pointed out. Therefore, the defendant's contentions regarding apportionment were not addressed on their merits by the WCAB.

Workers' Compensation Appeals BoardPetition for ReconsiderationUnverified PetitionLabor Code Section 5902ApportionmentCumulative TraumaSpecific InjuryAgreed Medical ExaminerQualified Medical EvaluatorSubstantial Evidence
References
1
Case No. ADJ1861602 (NOR 0180537) ADJ509009 (NOR 0190111)
Regular
Aug 23, 2010

MARIO VAZQUEZ vs. SOUTHERN CALIFORNIA GAS COMPANY, ALEXIS RISK MANAGEMENT SERVICES, INC.

The defendant sought reconsideration of a Workers' Compensation Appeals Board (WCAB) award of 100% permanent disability and lifetime benefits to the applicant for psychological and physical injuries. The defendant argued for apportionment to non-industrial factors, citing a medical evaluator's opinion that the applicant had pre-existing personality disorders. However, the WCAB denied reconsideration, finding the defendant failed to meet its burden of proof on apportionment, as the medical expert could not medically quantify the non-industrial contribution to the disability. Furthermore, the WCAB upheld the finding that the applicant's two industrial injuries were intertwined, preventing separate apportionment between them.

Petition for ReconsiderationJoint Findings of Fact and AwardIndustrial InjuryPsycheHeadachesSeizuresPermanent DisabilityApportionmentNon-Industrial FactorsSubstantial Evidence
References
12
Case No. ADJ7037475
Regular
Oct 04, 2018

JESUS ROJAS vs. GAY AND LESBIAN COMMUNITY CENTER, INC.; STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied Jesus Rojas's petition for reconsideration, affirming the administrative law judge's award of 81% permanent disability for his admitted industrial spine injury. Rojas argued for 100% permanent disability based on an Agreed Medical Examiner's opinion of inability to return to the labor market and contended apportionment to non-industrial factors was unsubstantiated. The Board found the apportionment to pre-existing congenital stenosis was supported by medical evidence and that the *Hikida* case did not apply as Rojas's disability was not directly caused by the effects of medical treatment necessitated by both industrial and non-industrial factors. Furthermore, the Board held that Labor Code section 4662(b) does not create an independent pathway to permanent total disability.

Petition for ReconsiderationFindings of Fact and AwardPermanent DisabilityApportionmentAgreed Medical Examiner (AME)Labor Code section 4656Labor Code section 4658Labor Code section 4662(b)Hikida v. Workers' Comp. Appeals. Bd.non-industrial factors
References
2
Case No. ADJ9284951
Regular
Dec 30, 2015

Carmen Villanueva vs. SEARS HOLDING CORPORATION, SEDGWICK CMS

The Workers' Compensation Appeals Board granted Carmen Villanueva's petition for reconsideration, overturning the initial award of 4% permanent disability with 25% apportionment. The Board found that the prior medical evaluator's apportionment to a non-industrial bunionectomy was not supported by substantial evidence, as the reasoning was speculative and contradictory. Consequently, the Board amended the award to 5% permanent disability with no apportionment to non-industrial causes.

Petition for ReconsiderationFindings and AwardsAdministrative Law JudgePermanent DisabilityApportionmentSubstantial EvidenceQualified Medical EvaluatorWhole Person ImpairmentBunionectomyIndustrial Injury
References
4
Case No. 71 Civ. 2381
Regular Panel Decision
May 27, 1971

Botany Industries, Inc. v. New York Joint Board, Amalgamated Clothing Workers of America

Botany Industries, Inc., an employer, sought to vacate a labor arbitration award, while the New York Joint Board, Amalgamated Clothing Workers of America, the union, sought its confirmation and enforcement. The dispute arose from a 1966 agreement between Botany and the Joint Board, which restricted Botany from doing business with non-union manufacturers of boys', students', and junior clothing and from licensing its 'Botany' trademark under similar conditions. Botany argued these provisions constituted an illegal 'hot cargo' agreement under section 8(e) of the Labor Management Relations Act. The union contended the agreement was protected by the 'garment industry exemption' or was a 'work preservation clause.' The court, presided over by Chief Judge Edelstein, found it had jurisdiction to review the award. It determined Botany did not fall under the garment industry exemption, nor was the agreement a valid work preservation clause. Consequently, the court held the agreement void and unenforceable, thereby vacating Arbitrator Gray's award.

Labor LawArbitration AwardHot Cargo ClauseGarment Industry ExemptionCollective Bargaining AgreementJudicial ReviewUnfair Labor PracticeUnion AgreementContract EnforcementTrademark Licensing
References
40
Case No. ADJ1357786 (RDG 0126731)
Regular
May 10, 2010

MARK JAMES vs. PACIFIC BELL TELEPHONE COMPANY; PERMISSIBLY SELF-INSURED ADMINISTERED BY SEDGWICK 14627 ONTARIO

The Workers' Compensation Appeals Board denied Pacific Bell's petition for reconsideration of an award to Mark James. The original award found James sustained a 100% permanent disability due to industrial melanoma, and Pacific Bell argued for apportionment to non-industrial causes. The Board affirmed the finding that the Agreed Medical Evaluator, Dr. Blau, was unable to determine the percentage of disability caused by non-industrial factors due to insufficient information. This inability to apportion, not a failure to consult, meant Pacific Bell failed to meet its burden of proof for apportionment.

Workers' Compensation Appeals BoardPacific Bell Telephone CompanyMark JamesMaintenance Splicing TechnicianMelanomaPermanent DisabilityApportionmentLabor Code Section 4663Agreed Medical Evaluator (AME)Dr. Robert Blau
References
4
Case No. ADJ3265478 (POM 0249587) ADJ8008455 ADJ8008457
Regular
Jun 11, 2012

Marva Thomas vs. Long Beach Unified Schools, Tristar Los Angeles

Applicant Marva Thomas sought reconsideration of three permanent disability awards, arguing the Agreed Medical Examiner's (AME) apportionment to non-industrial factors was unsubstantiated. The Workers' Compensation Appeals Board (WCAB) granted reconsideration, finding the AME's reports and deposition testimony lacked sufficient reasoning and did not establish a clear basis for the apportioned percentages. The WCAB rescinded the original awards and returned the matter for further development of the medical record. This ensures the AME's apportionment is adequately explained, demonstrating how and why specific percentages are attributed to industrial versus non-industrial causes.

ApportionmentAgreed Medical ExaminerPermanent DisabilityCumulative TraumaDegenerative ArthritisSubstantial Medical EvidenceReasonable Medical ProbabilityCausationLabor Code Section 4663Findings and Awards
References
1
Case No. ADJ2570690 (BAK 0136703) ADJ2091641 (BAK 0136704) ADJ2368957 (BAK 0136705)
Regular
Feb 01, 2016

WESLEY CHAMBERS vs. SCHLUMBERGER DOWELL, TRAVELERS INDEMNITY COMPANY OF ILLINOIS, TRAVELERS INSURANCE COMPANY

In this Workers' Compensation Appeals Board decision, the applicant sustained a 100% permanent disability award due to orthopedic and psychiatric injuries. The Board granted reconsideration, agreeing with the applicant's total permanent disability but finding the prior apportionment to non-industrial factors was insufficient. The Board amended the award to incorporate a 15% apportionment to non-industrial factors based on medical opinion, reducing the compensable permanent disability to 85%, and returned the case for a new rating. This adjustment stems from the applicant's pre-existing "family problems" which contributed to his psychiatric condition, independent of his industrial injuries.

Workers' Compensation Appeals BoardReconsiderationPermanent DisabilityApportionmentCumulative TraumaPsychiatric InjuryOrthopedic InjuryAgreed Medical ExaminerQualified Medical EvaluatorMedical Evidence
References
1
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