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Case Law Database

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

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. ADJ8189392
Regular
Jan 19, 2015

KATHRYN JOHNSON vs. STATE OF CALIFORNIA DEPARTMENT OF DEVELOPMENTAL SERVICES, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration regarding an award of permanent total disability. The defendant argued the vocational rehabilitation expert's report lacked substantial evidence and failed to apportion the injury. The Board found the vocational expert's opinion that the applicant was not amenable to vocational rehabilitation and had a complete loss of earning capacity was supported by medical evidence. This analysis was unaffected by the *Dahl* decision, leading to the denial of the petition.

Petition for ReconsiderationFindings and AwardNotice of IntentionVocational Rehabilitation ExpertSubstantial EvidenceApportionmentPermanent Total DisabilityLoss of Earnings CapacityDahl holdingContra Costa County v. Workers' Comp. Appeals Bd.
References
2
Case No. MISSING
Regular Panel Decision

Richardson v. Apfel

Plaintiff Barbara Richardson challenged the Commissioner of Social Security's denial of Supplemental Security Income (SSI) disability benefits. The District Court found that the Commissioner committed legal error by failing to adequately develop the administrative record regarding Richardson's mental impairments and by improperly dismissing new evidence from treating physicians without seeking further clinical support. The court also determined that the use of Medical-Vocational Guidelines was inappropriate due to Richardson's significant nonexertional impairments, necessitating the testimony of a vocational expert. The case was remanded to the Commissioner for reconsideration to obtain additional medical evidence and, if necessary, to secure a vocational expert.

Social Security Disability BenefitsSupplemental Security Income (SSI)Mental ImpairmentDysthymia DisorderPersonality DisorderTreating Physician RuleAdministrative Record DevelopmentMedical-Vocational GuidelinesNonexertional ImpairmentsVocational Expert
References
11
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. MISSING
Regular Panel Decision

Tate v. Secretary of the Department of Health & Human Services of the United States

Plaintiff Michael Tate appealed the Secretary of Health and Human Services' denial of disability insurance benefits, marking the second time the District Court considered his case. Tate, a 41-year-old functionally illiterate former factory worker with asbestosis and intellectual impairments, presented medical evidence from several physicians, mostly concluding he was totally disabled. Despite a vocational expert's testimony, the Administrative Law Judge (ALJ) found Tate capable of sedentary work, a decision upheld by the Appeals Council. The District Court found the Secretary's decision lacked substantial evidence, citing the ALJ's unsupported medical conclusions regarding Tate's inability to walk and fatally defective hypothetical questions posed to the vocational expert. Consequently, the court remanded the case for further evidence and consistent findings.

Disability BenefitsAsbestosisIlliteracyVocational ExpertRemandSocial Security ActSubstantial EvidenceFunctional IlliteracyLung DiseaseAppeals Council
References
8
Case No. ADJ8772254
Regular
Jul 20, 2017

Lorenzo Hernandez vs. STATE OF CALIFORNIA, DEPARTMENT OF CORRECTIONS AND REHABILITATION, NORTH KERN STATE PRISON, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied Lorenzo Hernandez's petition for reconsideration, upholding the original award of 24% permanent disability for a right shoulder injury. The applicant argued that a vocational expert's report should have rebutted the scheduled disability rating, but the Board found this report insufficient. Relying on *Ogilvie* and *Dahl*, the Board determined that an applicant's amenability to vocational rehabilitation precludes using vocational expert testimony to challenge a scheduled rating based on lost earning capacity. Therefore, the vocational expert's opinion was deemed not substantial evidence to overcome the QME's scheduled rating.

Workers' Compensation Appeals BoardPermanent DisabilityVocational ExpertQualified Medical EvaluatorScheduled RatingReconsiderationLabor Code §4660.1AMA Guides 5th EditionAmenability to Vocational RehabilitationDiminished Future Earning Capacity
References
3
Case No. ADJ10817362; ADJ10814219; ADJ10815251
Regular
Apr 14, 2023

SHANE PERRY vs. MASTEC, INC., ACE AMERICAN INSURANCE, ADMINISTERED BY ESIS

The Workers' Compensation Appeals Board granted reconsideration and affirmed the original decision finding the applicant permanently and totally disabled, with one amendment. The Board agreed to exclude the applicant's vocational rebuttal expert's report, as recommended by the Workers' Compensation Judge. However, the Board rejected the defendant's arguments regarding a subsequent injury, the vocational expert's legal standard, and the exclusion of defense vocational expert evidence.

Permanent and Total DisabilityVocational ExpertPetition for ReconsiderationMedical EvidenceLegal StandardAdmissibility of EvidenceCompensable Consequence InjuryLabor Market AccessDiminished Future Earning CapacityQME Reporting
References
14
Case No. ADJ7679237
Regular
Oct 27, 2017

VALERIE TRUJILLO vs. COLTON JOINT UNIFIED SCHOOL DISTRICT

The Workers' Compensation Appeals Board granted reconsideration and amended a previous award. The Board found that the administrative law judge erred by failing to address the applicant's vocational expert evidence concerning permanent total disability. The Board also directed the judge to incorporate an agreed medical evaluator's opinion on right ankle impairment if the vocational evidence is rejected. Jurisdiction was reserved on the issue of permanent disability, allowing for further evaluation of the vocational evidence.

WCABPetition for ReconsiderationFindings and AwardSpecial Education AideLumbar SpineRight AnklePsychePermanent DisabilityAgreed Medical EvaluatorAMA Guides
References
8
Case No. ADJ7682218
Regular
Aug 05, 2015

RICHARD ROSSI vs. BINKS MANUFACTURING COMPANY, TIG INSURANCE COMPANY, ZENITH [RIVER STONE GROUP], HARTFORD INSURANCE, ACE INSURANCE COMPANY, COMMERCE AND INDUSTRY INSURANCE, AIG DOMESTIC CLAIMS, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, INTERCARE INSURANCE SERVICES, AMERICAN MOTORISTS INSURANCE COMPANY, AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, LUMBERMEN'S MUTUAL CASUALTY, ILLINOIS TOOL WORKS, FINISHING BRANDS, ZURICH AMERICAN INSURANCE COMPANY, BROADSPIRE

The Appeals Board granted reconsideration to address applicant's contentions regarding the admissibility of vocational expert reports and his disability level. The Board reversed the exclusion of applicant's vocational expert reports, finding they should have been admitted into evidence despite CIGA's claims of insufficient notice. Issues regarding applicant's permanent disability exceeding 79%, entitlement to additional attorney's fees, and CIGA's liability for the vocational expert's costs were deferred. The case was returned to the trial level for further proceedings and decisions on these deferred issues.

CIGAvocational expertpermanent disabilityindustrial injurycancerlatency perioddue processsubstantial evidenceadmissibilityreconsideration
References
10
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
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